# Immigration and the Commissioners of Emigration of the state of New York/Chapter 9

CHAPTER IX.
IMMIGRATION AS AFFECTED BY THE CONSTITUTION OF THE UNITED STATES.
Constitional power of States to legislate on emigrationIN concluding this essay, it is proposed to examine, in the light of the decisions of the court of last resort, the constitutional power of the several States to legislate on the subject of emigration, and especially to derive a revenue from immigrants.
Decisions of Supreme CourtThere are but three cases in which the Supreme Court of the United States has had the question before them. The first was that of the City of New York against George Milne, reported in 11 Peters, 102, in which the decision was rendered at January term, 1837; the second was that of James Morris vs. The City of Boston; and the third and last, that of George Smith vs. William Turner, Health Commissioner of the Port of New York. The two latter were decided at the December term of 1848. The three cases can be summed up in a few words.
City of New York vs. Geo. MilneIn the first case, the Corporation of the city of New York had instituted an action of debt, under the Statute of February 11, 1824, against George Milne, as consignee of the ship Emily, for the recovery of certain penalties imposed by this act. The declaration alleged that the Emily arrived in New York in August, 1829, from a country out of the United States, and that one hundred passengers were brought in the ship, on the voyage, and that the master had not made the report required; it therefore claimed that the amount of $15,000 as penalties had become due in consequence of the breaches of the statute referred to. The defendant demurred to the declaration, and the question finally presented to the Supreme Court was, whether or not the act of the Legislature of the State of New York assumed to regulate trade and commerce between the port of New York and foreign ports, and, if so, was it unconstitutional and therefore void?
The two other cases are the same in principle, and have consequently been considered together.
​The plaintiff in the case of Norris vs. The City of Boston Norris vs. City of Bostonwas an inhabitant of St. John's, in New Brunswick, an English colony. He arrived at the port of Boston, in June, 1837, in command of a schooner belonging to St. John's, having on board nineteen alien passengers. He was compelled to pay to the City of Boston the sum of two dollars for each passenger before he could obtain permission to land them. This amount of thirty-eight dollars was paid under protest that the exaction was illegal. An action was thereupon brought against the City of Boston, in the Court of Common Pleas, to recover back this money; under the instructions of the court, the jury found a verdict for the defendant, on which judgment was entered, and which was affirmed on a writ of error to the Supreme Court of Massachusetts. The case was then taken to the Supreme Court of the United States.
The demand was made, and the money received from the plaintiff in pursuance of the following act of the Legislature of Massachusetts, passed on April 20, 1837, the third section of which reads as follows: "No alien passenger shall be permitted to land until the master, owner, consignee, or agent of such vessel shall pay the regularly appointed boarding officer the sum of two dollars for each passenger on landing, and the money so collected shall be paid into the treasury of the city or town, to be appropriated as the city or town may direct, for the support of foreign paupers."
In the case of George Smith vs. Turner, the plaintiff in error George Smith vs. Turnerwas master of the British ship Henry Bliss, which vessel touched at the port of New York in the month, of June, 1841, and landed two hundred and ninety steerage passengers. The defendant in error brought an action of debt against the plaintiff to recover one dollar for each of the above passengers. A demurrer was filed on the ground that the statute of New York was a regulation of commerce, and in conflict with the Constitution of the United States. The Supreme Court of the State overruled the demurrer, and the Court of Errors affirmed the judgment. This brought before the United States Supreme Court the constitutionality of the New York statute, which, under the general denomination of health laws in New York, provides that the Health Commissioner ​shall demand and be entitled to receive, and in case of neglect or refusal to pay shall sue for and recover, in his official name, from the master of every vessel that shall arrive at the port of New York from foreign ports, one dollar for each steerage passenger, mate, sailor, or mariner.
Clauses of Constitution involved in enquireThe subject of this enquiry is complicated with, and depends on, the construction of the first, second, fourth, and fifth clauses of the eighth section, the first and fifth clauses of the ninth section, and the second clause of the tenth section of the first article; of the first clause of the second section of the fourth article of the Federal Constitution, and with the ninth and tenth articles of the amendments to that instrument.
The first and second clauses of the eighth section of the first article, so far as in point here, read as follows:
"1. The Congress shall have power,
"2. To lay and collect taxes, duties, imposts, and excises; to pay the debts and provide for the common defence and general welfare of the United States; but all duties, imposts, and excises shall be uniform throughout the United States."
Construction of eighth section, first article, as not applicable to taxationUpon the construction of this section, the point is made that the collection of taxes is a power substantively vested in Congress, and not incident to the power to regulate foreign and inter-State commerce. The regulation of commerce vested in Congress was not, therefore, understood by the framers of the Constitution to apply to any species of taxation, and is not to be resorted to for any argument respecting the continuance in or ademption from the several States of the power to impose any kind of taxes. The Federalist, No. 32, asseverated that the several States would retain their taxing power absolutely undiminished except by the express prohibitions on State taxation, which is incompatible with an implied curtailment of those powers by virtue of the clause vesting Congress with the regulations of commerce.
Opinion of J. DanielsThis point is strongly put by Daniels, J., in his dissenting opinion in Smith vs. Turner, 7 Howard, U. S. R., p. 429, who cites Gibbons vs. Ogden, 9 Wheaton, 201, in support of it.
J. McLeanThe correctness of the citation is admitted by McLean, J., ​of the majority in Smith vs. Turner, but the soundness of the doctrine is disputed on the ground that the uniformity of duties, imposts, and excises throughout the Union is incompatible with their imposition by other than the general power. This objection must be regarded as exploded by the subsequent practice of the Government in the matter of excises. That practice proceeds on the assumption that the mandate that excises must be uniform is addressed to Congress only. C. J. Taney, also, of the minority in C. J. TaneySmith vs. Turner, is likewise clear (7 Howard, 479) that Congress takes all its power of indirect taxation from this clause, and none (except the right to tax slaves imported) from any other, and says that this view, under which the Constitution was adopted, has been frequently confirmed by the Supreme Court (Marshall, C. J., in Billings vs. Providence, 4 Peters, 561). The same view is taken by Woodbury, J., also of the minority in Smith vs. Turner (7 Howard, 549)
It would appear to be still an open question, unless impliedly Power of indirect taxation vested in Congress; whence derivedclosed by the majority vote in Smith vs. Turner, whether Congress derives its power of indirect taxation from other sources than the present clause. If this is the sole source, it is clear that it is not exclusive, because the power of the States to tax indirectly has never been disputed, and has been constantly exercised. And if this is the sole source of the taxing power of Congress, that power, as applied to immigrants, is not only not exclusive in Congress, but it is probably not vested in Congress at all. The power to levy taxes, duties, imposts, and excises is not general, but is restricted to such as are laid for the payment of the debts or common defence or general welfare of the United States.
The general welfare of the United States does not include the protection of the tax-payers of New York from exorbitant poor taxes. See 9 Wheaton, 199, 206, cited by Woodbury, J., in Smith vs. Turner, 7 Howard, 550. Now, if Congress is without power to effect an end necessary for the public safety and comfort, it cannot be pretended that that power is taken from the States.
The provision that duties, imposts, and excises shall be uniform throughout the United States is invoked by McLean, J., to prove that the power to impose them must necessarily be exclusively in Congress. This point has been already referred to. Judge ​Woodbury (7 Howard, 546) holds that legislation respecting foreign paupers is not required to be uniform.
Fourth clause of the eighth section of the first article of Constitution interpretedThe fourth clause of the eighth section of the first article provides that Congress shall have power "to regulate commerce with foreign nations, and among the several States, and with the Indian tribes."
Is or is not this power vested in Congress to the exclusion of the States? J. McLeanThe affirmative is held by McLean, J., of the majority in Smith vs. Turner, on the ground that the idea of its being vested concurrently in Congress and in the States involves a total repugnancy (Holmes vs. Jennison, 14 Peters, 517), and because two wills cannot be compatibly exercised respecting the same subject at the same time (Houston vs. Moore, 5 Wheaton, 23). He says that in Gibbons vs. Ogden, 9 Wheaton, 196, Johnson, J., expressly, and the majority of the court impliedly, held that the power was exclusive, and that Judge Story drew the same result from Gibbons vs. Ogden in New York vs. Milne, 11 Peters, 156 (Judge Story there also says that he knew C. J. Marshall [then deceased] agreed with him). To the same effect, he says, Marshall, C.J., reviewed the whole ground in Gibbons vs. Ogden. The Constitution restricts the power of the States to lay duties on imports, and this was admitted and acknowledged in Gibbons vs. Ogden to admit the existence of a power to tax in the States. "But," says Judge McLean, "I do not think it admits the power of the States to regulate commerce." He refers to Wilson vs. The Blackbird Creek Marsh Co., 2 Peters, 250, and says "that it does not decide, as contended, that a State may regulate commerce, but only that where a creek otherwise navigable falls into the sea, but is of so limited an extent that it may well be doubted whether the general regulation of commerce will apply to it, and a State causes it to be dammed for the sake of the public health, the Supreme Court of the United States will not overrule such a State law until Congress expressly exercises federal jurisdiction over the J. Wayne. subject. Judge Wayne, of the majority in Smith vs. Turner, says (7 Howard, 410) that the exclusiveness is unquestionable since Gibbons vs. Ogden, and (p. 415) that the States have given away all control of commerce, except the regulation of their internal trade. Admitting that the opinion delivered by Judge ​Barbour as that of the Court, in 1837, in New York vs. Milne (11 Peters, 130), militates against this view, he says that opinion never had the majority, but was assented to by three judges (Barbour, Taney, C.J., Thompson) only out of seven (Baldwin, McLean, Wayne, Story). The opinion in that case of Judge J. BaldwinBaldwin, which was accidentally excluded from the report, but published the same year in Baldwin's "Views of the Constitution," also declares the power exclusive. At the first consultation of the Judges, Thompson, J., was directed to write the opinion of the Court. When he read his production, it was objected to on another ground, that is, on the ground that Thompson declared a State might regulate commerce wherever there was at the time no conflicting Congressional legislation, whereas the majority of the Court preferred to leave that point open. He then said he would read it as his own opinion. Barbour then undertook to deliver the opinion of the Court. Without a further consultation, he read it, just before the Court separated.
Baldwin immediately objected, on the ground that Barbour said persons were not the subjects of commerce, and not imported goods; privately, but in vain. Wayne says there was no intention in New York vs. Milne to deviate from Gibbons vs. Ogden or Brown vs. Maryland (12 Wheaton, 438). He admits that, in Grove vs. Slaughter (15 Peters, 549), Baldwin spoke approvingly of New York vs. Milne, but that, so far from denying the exclusiveness, he, in that very opinion, asserted it to have been conclusively settled by Gibbons vs. Ogden and Brown vs. Maryland. Judge Grier, likewise of the majority in Smith vs. Turner, evidently regards the question of the exclusiveness of this power as still open.
Daniels, J., of the minority in Smith vs. Turner, admits that in J. DanielsGibbons vs. Ogden Judge Johnson pronounced for exclusiveness, but remarks that the majority in that case expressly disclaim an intention to pass upon the point. He contends that Story, J. (one of the majority in Gibbons vs. Ogden), held, in Houston vs. Moore, 5 Wheaton, 48, the direct contrary of what in New York vs. Milne, 11 Peters, 158, he pronounces to be the law as settled in Gibbons vs. Ogden (see 13 Barb., 206; People vs. Huntington, 4 New York Leg. Obs., 187). Judge Barbour, Judge Thompson, and ​Baldwin, of the supposed majority, and Story, J., of the minority, in New York vs. Milne (1837), died before Smith vs. Turner, McLean and Wayne of the majority, and Taney, of the minority, survived. J. CatronJudge Catron, of the majority in Smith vs. Turner, incidentally declares the power exclusive (7 Howard, 448), but does not dwell on the point. C. J. Taney.Taney, C.J., of the minority in Smith vs. Turner, evades the direct question of exclusiveness, but says that the passage objected to in Thompson, J.'s opinion in New York vs. Milne, was that in which he said that a State might regulate commerce, while the power so to do in Congress, respecting a particular matter, was dormant, and that the reason of the objection was that the majority desired to leave that question open.
J. NelsonNelson, J., in Smith vs. Turner, concurs in all points with Taney. J. Woodbury.Woodbury, J., of the minority in Smith vs. Turner, holds that the power is not exclusive (7 How., 554), because there is no express prohibition on the States, and because the power is not in its nature necessarily exclusive (Federalist, 82; 14 Peters, 575), and cites many other authorities (p. 555). Where the doctrine is apparently contravened, he says it is in the application, not in principle. The regulation of commerce has been expressly held not exclusively vested in Congress, so as to prevent the States from regulating bridges and ferries (cites authorities, p. 556), fisheries (ib.), pilots (p. 557). He says it has been nowhere decided that the power to regulate commerce is exclusive (p. 559), that the contrary has been held in the License Case (5 Howard, 504). He contends that much of the regulation of trade is necessarily local, and the nature of the power does not require it to be exclusive.
Cases cited to show regulation of commerce not exclusively vested in CongressThat the regulation of commerce is not exclusively vested in Congress is also laid down in Cooley on Constitutional Limitations, p. 486, citing Cooley vs. Board of Wardens (12 Howard, 299; Sin Ling vs. Washburn, 20 Cal, 534; Crandall vs. Nevada, 6 Wall; State vs. Delaware, etc., 1 Vroom, 413).
The latter case decides that a State may tax the business of a railroad, incorporated by a sister State, transporting across the taxing State, graduating the tax by the number of passengers and weight of goods carried. The contrary appears, however, to ​have been decided between the same parties (on appeal?), 30 Jersey Reports, 531.
In ex parte Crandall it was decided (1 Nev., 294) that a State may tax passengers leaving the State.
A State may tax a State steamship company plying to and from Brazil, on its capital (People vs. Commissioner of Taxes, 48 Barb., 157).
It is almost impossible to say on which side the scale of authority turns. Authorities conflictingThe question, however, may be evaded, without avoiding to decide the question here involved.
Because it is not disputed that where Congress has regulated commerce the States cannot interfere by conflicting regulations (Gibbons vs. Ogden, 9 Wheaton, 195; Grier, J., of the majority in Smith vs. Turner).
But, has Congress regulated commerce in this particular? "Aye," say Judge McLean and Judge Grier, of the majority in Smith vs. Turner, "it has regulated it, by willing that this trade should be free." "Aye," says Judge Catron, "because they have exempted the property of emigrants" (Act March, 1799, §46), and because they expressly allow the emigrant to appear at the Custom House with his goods (17 Howard, 443), and to come into the federal courts and sue (444).
"No," says Taney, C. J., of the minority, "because the Act of 1799 only presupposes the landing." It does not repose the decision of who shall be allowed to inhabit the country in a shipmaster (p. 471). Nelson agrees with Taney.
Woodbury, J., says, very forcibly, that it is arguing in a circle to contend that a power is exclusive if Congress speaks, and, therefore, if Congress is silent, that silence is a speech, because the power is exclusive. The power must first be shown to be exclusive before it can be said that the silence of Congress speaks (p. 559). On the hypothesis of exclusiveness in all mere grants, what becomes of concurrent power under any circumstances?
Are passengers the subject of regulations of commerce? The majority of the Court {{left sidenote|{{smaller|Are passengers subject of regulations of commerce?(McLean, Grier, Wayne, Catron, McKinley) in Smith vs. Turner, says Yes. McLean says commerce does not relate exclusively to "commodities," unless they include passengers. Says that has been settled in Gibbons vs. Ogden.
​That commerce means commercial intercourse is also held in People vs. Brooks, 4 Denis, 469.
Conflicting opinionsThe word "commerce," says Wayne, J., was used with reference to the fact that taxes are not usually imposed on persons until they have resided some time in the State (Martens, 69; 7 How., 417). The decision in Milne is not to the contrary (428). So much of the opinion of J. Barbour as seems to be, is not assented to by the majority, especially that part which declares that persons are not the subjects of commerce. Judge Baldwin's decision sustains this assertion. In New York vs. Milne, Wayne, McLean, Thompson, and Baldwin all objected to the doctrine that persons are not the subjects of commerce. In Groves vs. Slaughter, Baldwin says commerce means intercourse.
The minority in Smith vs. Turner (Daniels, Taney, Woodbury, Nelson) contest this with bitterness (p. 493, p. 541).
Are laws imposing taxes on foreign passengers, to be applied to the support of foreign paupers, regulations of commerce? The majority in Smith vs. Turner affirm the proposition. Daniels, J., of the minority, says Gibbons vs. Ogden proves that regulations of commerce do not embrace any taxes. The opinion given as the opinion of the Court by Barbour, J., in New York vs. Milne, agrees in this respect with the minority in Smith vs. Turner. Taney, C.J., refers to this subject (p. 470). He thinks this imposes no burden on commerce, but only exacts security against pauperism. Woodbury (p. 578) says the measure is not intended to regulate trade, and does not, for emigrants are not deterred. Free passengers are not included in commerce as regulated, though slaves might be (p. 541). This regulation was made diverso intuitu (546).
Does the fact that a State law, made for a legitimate State purpose, exercises a collateral influence on commerce, make it unconstitutional?
It does, says the majority in Smith vs. Turner. Grier, J., says a State cannot do indirectly what it cannot do directly. The police power of the State, says McLean, cannot draw within its jurisdiction objects which lie beyond it. The object, says Catron, J., does not sanctify the means. In New York vs. Milne, Story, J., dissenting, said, though the States can make police regulations, ​they cannot make them by regulating commerce, and that he knew Marshall, C. J., had been of the same opinion.
But the majority in New York vs. Milne seem to have thought otherwise, and so do the minority in Smith vs. Turner. Taney, C.J., savs the negative was ruled in the License Cases (5 Howard, 473) and in the Federalist, No. 32. A State tax, though at the same time a regulation of commerce, is not forbidden (7 How., 419; Billings vs. Providence Bank, 4 Peters, 561). It is no objection to a quarantine regulation that it is self-supporting (p. 414). Woodbury says that to impute sinister designs to a State is unseemly (552).
A State law may exclude foreign criminals and diseased persons, States have power to exclude alien criminals, etc., and to exact bondsand may, to prevent loss by subsequent pauperism, exact bonds from passengers, and may compel masters, before landing, to report their passengers, and may have them inspected.
The latter part of this proposition was denied by the minority in New York vs. Milne; and such appears to have been the opinion of Marshall, C. J., in Grove vs. Slaughter. But the law is now clearly settled. The exaction of bonds has not the sanction of any decision of the court, for the judgment in New York vs. Milne carefully avoids the point, and Judge Taney admits that there was great diversity (7 How., p. 481); he says for himself that he entertains no doubt of the lawfulness of these bonds.
Can a State first exact bonds, and then provide that they may be commuted in money? Such is the present law of New York, and its constitutionality, though unsustained by decision, appears to be tacitly admitted.
Fourth clause, eighth sectionThe fourth clause of the eighth section of the first article reads thus:
"Congress shall have power to establish a uniform rule of naturalization."Power of naturalization exclusive
This power is exclusive (2 Dallas, 372; 2 Wheaton, 269; 5 Howard, 585; 7 Howard, 556; 3 W. C. C., 314). Judge Catron, of the majority in Smith vs. Turner, says that this provision forbids the exclusion of foreigners by the States, or the taxation of them on entering (7 Howard, 448). So does Judge Wayne (p. 426). ​But Taney, C. J., says that this clause has nothing to do with the admission of foreigners (p. 483); it was adopted to prevent one State from making citizens for another.
First clause, ninth section—its interpretationThe first clause of the ninth section of the first article reads: "The migration or importation of such persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the year 1808, but a tax or duty may be imposed on such importations not exceeding ten dollars for each person."
"This clause," says McLean, J., of the majority in Smith vs. Turner, "proves that the regulation of commerce covers voluntary as well as involuntary immigration." McKinley, J., says it distinguishes between migration and importation, by subjecting the latter only to taxation, but that it declares them both subjects of commercial regulations. It impliedly allows Congress to prohibit immigration into all new States even before 1808, and therefore forbids the States to tax it. Wayne, J., agrees with him.
Daniels, J., contends this clause applies purely to the slave-trade (Federalist, No. 42). Taney, C. J., the same (7 Howard, 474; Madison Papers). The power to prohibit voluntary immigration could not have been intended to be conferred, because all the States were in favor of it. All the States then admitted voluntary immigrants. This shows the clause relates to slaves only. "Migration" was used lest "importation" might not aptly apply to human beings. At all events, there is no power to compel the States to admit emigrants. Woodbury, J., says that the power to tax is conferred only respecting slaves. A special clause was introduced for that purpose, because it was doubtful whether such a tax was an impost (1 Blackstone, by Tucker, p. 231). Besides, this class does not confer a power, but limits it (p. 541).
Fifth clause, ninth sectionThe fifth clause of the ninth section of the first article reads (as far as in point here):
"No preference shall be given, by any regulation of commerce or revenue, to the ports of one State over those of another; nor shall vessels bound to or from one State be obliged to enter, clear, or pay duties in another."
​McLean, J., of the majority in Smith vs. Turner, says that, if foreigners are thus to be taxed, as well might passengers who come from another State. This is unconstitutional because of the clause cited; but this does not protect passengers, except by the same implication as does the clause respecting the regulation of foreign commerce.
The second clause of the tenth section of the first article Second clause, tenth section—its application to passengensreads:
"No State shall, without the consent of 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 United States. No State shall, without the consent of Congress, lay any duty of tonnage."
In Smith vs. Turner, Grier, J., of the majority, says an act imposing a tax on passengers from foreign ports before landing might be called an act to raise revenue off vessels transporting passengers. It is a duty on the vessel, producing a like result as a tax on tonnage. That the tax is really paid by the passenger is no answer. Such is any indirect tax. A State, says Catron, Jr., "cannot raise duties on imports as a revenue measure for her own treasury." The passengers had not yet come under State jurisdiction, because they could not be taxed without either taxing tonnage or imports. In New York vs. Milne, Barbour, giving what appears as the opinion of the Court, says that passengers are not imported goods. But this, says Wayne, is what made Baldwin say he liked this opinion less than Thompson's, and which was contrary to the opinion of five of the judges. But in Smith vs. Turner this opinion is held by Daniels, Taney, Nelson, and Woodbury. That passengers are not imports, says Taney, C.J., was decided in New York vs. Milne. But at all events this tax was necessary for the inspection of these imports (477, 481). Woodbury, that passengers are not imports, cites Brown vs. Maryland (McCulloch, Dictionary, article Passengers; 5 How., 594, 614). If they were, they would ​be dutiable as non-enumerated. Whether a tax is imposed on shipboard or in a hotel, cannot make a void tax valid or a valid tax void.
First clause, second section, fourth article—its interpretation.The first clause of the second section of the fourth article reads as follows:
"The citizens of each State shall be entitled to all privileges and immunities of citizens in the several States."
Woodbury, J. (7 Howard, 525), says that but for this clause each State would have the right to exclude the citizens of every other State, and that, as respects foreigners, the original right of each State to exclude all except its own citizens is unimpaired.
Taney, C. J. (p. 491), says: "I believe only so much of this act as taxes passengers coming from foreign ports is constitutional. The citizens of one State have free access to Washington, etc., and to pursue slaves," etc.
Second section, sixth articleThe second section of the sixth article of the Constitution says:
"This Constitution, and the laws of the United States which shall be made in pursuance thereof, and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land."
"Whenever a right grows out of or is protected by a treaty, it is sanctioned against all the laws and judicial decisions of the States; and whoever may have this right, it is to be protected." 5 Cr., 348; 4 Am. Law Reports, 604; 6 Opin., 291, Walker; Cr., 129; 1 Doug., 546.
Opinions of judges"By Art. 14 of Treaty of 1794 with England," says McLean, J., in Smith v. Turner (7 Howard, 468), "the people of each country may freely come into the other." "But," says Daniels, J., of the minority, "in the first place, treaties are not supreme unless made within the authority legitimately exercised by the Federal Government. A treaty can't cede away a right of a single State reserved in the Constitution. In the second place, that article can not be so construed as to prohibit such taxation." Taney, C. J., ​also of the minority (p. 471), says the treaty admits foreigners, subject to our laws.
The ninth and tenth articles of the Amendment to the Ninth and tenth articles of Amendment; its construction in Smith vs. TurnerConstitution read as follows:
"9. The enumeration in the Constitution of certain rights shall not be construed to deny and disparage others retained by the people.
"10. The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."
See 1 Story, Constitution, § 447; 1 McLean, 234; 5 Harris (Remd.), 119.
In Smith vs. Turner, Grier, J., of the majority, says: "This is not the case of a police regulation to repel paupers, lunatics, or criminals. That right was vindicated in New York vs. Milne, 1837, 11 Peters, 102, but no more. Here the claim is not a fee or toll for some service rendered, nor a license to become citizens. It is by no means a fact that most of the foreigners who afterwards become paupers remain in the seaports. This tax is founded on the claim of power in a State to exclude all persons from passing through her territory. The same power, if existing, might be exercised by every State through which an emigrant was compelled to travel. This would thwart the cherished policy of the General Government. It is not a necessary appurtenant of the police power. The exclusion of criminals and paupers may be necessary, like that of putrid or pestilential goods, while that of emigrants and sound merchandise is perfectly harmless. The right to tax and exclude does not follow from the right to punish crimes. Else a State might exclude all persons and all vessels."
"This," says McLean, J., same side, "is not a health law. New York vs. Milne does not sustain this act. The acts there under consideration simply exacted reports of all passengers, and imposed a penalty for not reporting. It was an internal police regulation. It did not impose a tax as a prerequisite to the introduction of passengers. Except to guard against diseases and paupers, a State cannot prohibit the introduction of foreigners. It may deny them a residence unless they shall give security to ​indemnify the public should they become paupers." (Grove vs. Slaughter, 15 Pet., 549.) "The police power of the States cannot draw within its jurisdiction objects which lie beyond it."
"The police power," says Catron, J., same side, "proves too much, and does not apply to persons in good health and of good character. The object cannot sanctify the means. The act is not in execution of any supposed State right to exclude all aliens, because nothing of the sort is attempted. No such right exists; it would be incompatible with the exclusive right of Congress to make war, peace, and treaties, regulate commerce, and naturalize aliens. The persons and property taxed had not yet come under State jurisdiction, because they could not be taxed without taxing either tonnage or imports."
"The States," says Wayne, J., same side, "have given away all control of commerce, except that of regulating internal trade. The motive cannot save a law if it practically operates in a regulation of commerce. Milne's case established no more than the right of each State to be informed of the name and quality of every foreigner that arrives. The States have retained no more police power than is necessary to their internal government. No point was ruled in Milne's case which gives any support to the law now in question. The fear that the decision (of the majority) will be held to prevent the slave States from forbidding the introduction of freedmen from the West Indies is unfounded. That case would be an exception to the present rule, because the Constitution must be interpreted according to its subject-matter. The fundamental idea was, that slavery should remain undisturbed by the Federal Government. What had the majority of the judges in Milne's case was the point that the duty to report was a police regulation, and, therefore, not unconstitutional. The court never intended, in Milne's case, to derogate from Gibbons vs. Dissenting opinionsOgden or Brown vs. Maryland." The dissenting opinions, however, assume exactly contrary grounds. "The fundamental question," says Taney, C. J. (p. 464), "is: Has the Federal Government power to compel States to receive, and suffer to mingle with its citizens, any person or class of persons? I had thought the negative established by Holmes vs. Jennison, 14 Peters, 540; Grove vs. Slaughter, 15 Peters, 449; Prigg vs. The ​Commonwealth, 16 Peters, 539. These cases decide that the States have the power to expel and exclude. There can be no concurrent power respecting such a subject matter. Such a power is necessarily discretionary. Massachusetts fears foreign paupers; Mississippi, free negroes. The rightfulness of taking bonds is in controvertible—self-defence against European almshouses. The Constitution does not distinguish between different grades of aliens. We cannot enquire whether their persons were paupers or not. The Act of Congress of 1819 keeps carefully within Federal jurisdiction. It says nothing about the landing of passengers, nor about their health or condition, which it would have done had it meant to vindicate a right to landing anybody. This act of Massachusetts only exacts security against pauperism. We cannot admit emancipated slaves. This act of New York is a quarantine law, and no more. The provisions for making it self-supporting are legitimate incidents."
Nelson, J., fully concurred with Taney, C. J. "States," says Woodbury, J., also of the minority, "may keep off foreign paupers, even paupers from other States." (Revised Statutes of New Hampshire, chapter 67; 5 Howard, 629; Colonial Charter of Massachusetts, 1639, p. 113, and 1692, p. 252). Indemnity from shipmasters has been required in Massachusetts since 1701, and has assumed its present form in 1837, after the Milne decision. The present measure is one of police regulation, and fair. The money is wholly applied to the support of foreign paupers. That money is called for as security, and not a bond, is no objection. Police measures have not been ceded to the Federal Government, but are open to the States, if honestly administered as such (License cases, 5 Howard, 624; Baldwin's Views, 184-188; United States vs. Bedford Bridge, 1 Wood vs. Minn, 423). The principle was settled in Milne. All governments may exclude foreigners (Vattel, chapter 19, § 201; 5 Howard, 328). The alien act (June 17, 1798, 1 St. at L., 571) was considered unconstitutional, because it was believed this right had not been surrendered (4 Elliott, Debates, 581, Virginia Resolutions of 1798). The old Congress in 1787, after the adoption of the present Constitution, requested the States to exclude foreign malefactors. As against foreigners, the States have never surrendered this power. ​Power cannot be taken from the States by mere implication. Congress has no power to maintain paupers. Poor-laws belong to the States (Vanderbilt vs. Adams, 7 Wendel, 349; 1 Blackstone's Com., by Tucker, 249), although not strictly referable to sanitary or other police. The States have exclusive power to lay taxes for the support of paupers (9 Wheaton, 206). The Constitution of Kentucky, sanctioned by Congress, says States have power to exclude slaves as merchandise; the States have not ceded their ports for taxing or other purposes. The regulation of the number of passengers by Congress is not inconsistent with the imposition of terms on their landing by a State to support paupers, replenish her treasury, or exclude criminals. Though the means may be very similar, the powers are not identical (Marshall, C. J., 9 Wheatori, 204). Hides may be imported, and yet destroyed by the State if noisome. To recapitulate:
Unsettled pointsIt must be regarded as still unsettled—
Whether the power to regulate foreign and inter-State commerce is vested in Congress to the exclusion of the States.
Whether a State law passed for a legitimate purpose, or whether a State tax, not otherwise objectionable, is unconstitutional, if it tends incidentally to regulate foreign or inter-State commerce.
Whether taxes or imports are intended, by the Constitution, to be included among regulations of commerce.
Whether passengers from foreign ports are in such a sense the subjects of commerce that taxes imposed on them, and exacted as a prerequisite to their landing, are regulations of commerce.
Whether passengers from foreign ports, after their arrival in a home port, but before landing, are imports.
Whether Congress has so legislated as impliedly to regulate commerce in foreign passengers by willing that it shall be free.
Whether single States have the right to exclude aliens from their boundaries.
Whether States may impose a tax per head on passengers from foreign ports, payable by the master before his being permitted to land them.
Whether States may exact bonds from ship-masters or others, ​conditioned that passengers from abroad, now in good health, shall not become chargeable as paupers.
Whether States may circuitously impose a tax, by first exacting such bonds, and then permitting them to be commuted for a specified sum of money.
On the other hand, the following points may be regarded as well settled:
A State has the right to deny foreign paupers, or foreigners Settled pointslikely to become paupers, a residence on its borders.
A State has jurisdiction of its own ports for purposes of port regulations and harbor police, sanitary police, quarantine administration, pilotage, and the support, maintenance, and regulation of paupers, foreign and domestic.
A State has the right to be informed of the name and quality of every foreigner coming within its limits, and to impose a penalty on any ship-master failing to comply with a State law requiring him to make such report.
A State has the right to maintain paupers, foreign and domestic, and to lay a tax for that purpose on foreigners or others, when undoubtedly within its jurisdiction, and not imports or subjects of commerce.
The Federal Government has no power to maintain paupers, foreign or domestic, or to levy taxes for that purpose.
A law of Congress, regulating commerce, is paramount to any State law purporting or pretending to do the same.
A State law pretending to subserve a legitimate object of State legislation, but in fact aiming at and effecting a disturbance of commercial regulations made by Congress, is unconstitutional and void.
A State cannot impose a tax on passengers coming into its ports from the ports of other States.
And it seems to be the better opinion, that a State cannot legislate for the regulation of foreign or inter-State commerce on the ground that it does not interfere with any existing act of Congress.