# New York v. Miln (36 U.S. 102)

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United States Supreme Court
36 U.S. 102
New York v. Miln
[Syllabus from pages 102-104 intentionally omitted]
CERTIFICATE of Division from the Circuit Court for the Southern District of New York. 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 11th, 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 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.
The following point was presented to the court on the part of the defendant: '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.' Upon this question, the opinion of the judges being opposed, the same was certified to this court, at the request of the plaintiffs.
The case was argued at a former term of this court, and the justices of the court being divided in opinion, a re-argument was directed.
It was again argued by Blount and Ogden, for the plaintiffs; and by White and Jones, for the defendant.
Blount, for the plaintiff, contended, that the law in question was constitutional. The case, he said, was not without difficulty; indeed, the very hesitation of a court, constituted as this was, admonished him of the doubts and difficulties attending the solution of the question.
The law was one peculiar to this country, and it grew out of circumstances also peculiar to this country. The emigration to the United States, since the American revolution, was unprecedented in history, not merely in numbers, but in its character. It was not a military colonization, like the Greek and Roman colonies; nor was it mercantile, like the East India and American colonies of modern Europe. Neither did it resemble the emigration of the Moors from Spain, or the Huguenots from France. It was a constant and steady migration of civilized Europeans to an independent country, controlled by a civilized people. This migration was peculiar to the United States, and we cannot find legal analogies in other countries. That migration has now reached the amount of 60,500 yearly, into the port of New York alone. It was obvious, that laws were needed to regulate such a migration; and the Atlantic states, generally, have passed such laws; and the law in question is that of New York, providing that masters of vessels, bringing passengers to that port, who have no legal settlement in the state, shall give bonds to the city to indemnify it for three years from all charges on account of their maintenance. It also provides for a report to the mayor of the names, &c., of the passengers, and inflicts a penalty for a violation of the law.
At the previous argument, the defendant contended, that this was a regulation of commerce, and that the power to regulate commerce was exclusively vested in congress. Hence this law, passed by a state, was unconstitutional. We do not admit this law to be a regulation of commerce; but conceding, for the sake of the argument, it to be so, it does not follow, that it is unconstitutional.
I. Because congress has the power to regulate commerce, it is not a consequence, that it is an exclusive power. Powers granted to congress are exclusive only: 1st. When granted in terms expressly exclusive. 2d. When the states are prohibited from exercising it. 3d. When exclusive in its nature. This power clearly does not fall under the first nor second class.
Does it under the third class? The counsel contended, that a legislative power is exclusive in its nature, only when its existence in another body would be repugnant to, and incompatible with, its exercise by congress. Not that its exercise by a state legislature would be incompatible with, its exercise by congress. That is a conflict between concurrent or co-ordinate powers; and where that takes place, we concede the federal power is supreme. A power exclusive in its nature, must be such that the states can pass no law upon the subject without violating the constitution. Federalist, No. 32; 5 Wheat. 49; 1 Story on Const. Law 432.
Concurrent powers are of two classes. 1st. Where any federal legislation covers the whole ground, and exhausts the subject; as fixing the standard of weights and measures. Here, after congress has legislated, the power of the states is at an end. 2d. Where the power may be exercised in different modes, or on different subjects; or where the object admits of various independent regulations operating together. In these cases, the concurrent laws are all in force, and the state law is void only so far as conflicts with the law of congress. The 2d section of 6th article of the constitution, providing that the laws of congress, made pursuant to the constitution, shall be the supreme law of the land, proves that this species of concurrent legislation was contemplated. This court has sanctioned this view of the subject. 4 Wheat. 122, 196; 5 Ibid. 49; 9 Ibid. 200. In the case of Saunders v. Ogden, it was decided, that a bankrupt law passed by a state was valid, until it conflicted with federal legislation.
The counsel, Mr. Blount, contended, that the case of Gibbons v. Ogden, did not touch the case before the court. 1st. Because, there the power to regulate commerce was regarded as exclusive only so far as it regulated the commerce of the United States as a whole. 2d. Because, there the question decided by the court was whether a state could regulate commerce, while congress was regulating it. 9 Wheat. 200. 3d. Because it was expressly said in that case, by the court, that it never was intended to deny to the states all legislation, which might affect commerce. Ibid. 204. That decision therefore does not touch the point; and the court is now called upon to go further, and declare all state laws affecting commerce void. This is the extent of defendant's doctrine.
There is here no conflict of concurrent laws. Congress has passed no law conflicting with this law. The acts of 1779, March 2d, and of 1819, March 2d, cited by the defendant's counsel in the former argument, are for different purposes. The first is a revenue law, and the provisions relating to passengers are confined entirely to the entering and landing of baggage, and they are intended to prevent smuggling. The second is intended to prevent the cupidity of masters and owners from crowding their ships with passengers, and to compel them to provide a sufficient quantity of water and provisions. The treaties with Brazil, and Austria and Prussia, are equally inapplicable. They merely secure freedom of commerce and intercourse to the subjects of these countries, they conforming to the laws of this country. This law was then in existence, and the exception provides for the execution of all such laws. Besides, the defendant here does not appear to be a subject of either of those powers; and, of course, cannot claim anything on account of those treaties, even if they were applicable to the case.
We do not deny, that in regulating commerce, the power of congress is supreme, and it may be regulated either under that power, or under the treaty-making power. Until that be done, and the conflict occur, the state law is valid. Such are the doctrines of this court, and of the ablest jurists. 1 Story, Const. Law 433. 'Congress may make that a regulation of commerce, which a state may employ as a guard of its internal policy or to promote its own peculiar interests.' 'If the power to regulate commerce be exclusive, still the legislation of a state, acting on subjects within the reach of other powers, besides that of regulating commerce, would be constitutional.' 2 Story, Const. Law 517.
In order to decide the cause for the defendant, the court must come to the conclusion, that the power regulating commerce is so exclusive that all state laws affecting or regulating commerce are necessarily void, even where no conflict exists. This is beyond any former decision, and we think the court will not adopt such a conclusion. 1st. Because it is a case where power is claimed by implication, and it is not sufficient to show a possibility of inconvenience. All such cases, too, are decided upon their own grounds. 2d. It is a question of power, and the court will require most convincing arguments, before denying it to the states. 3d. Such a construction is not necessary to reconcile former decisions. 4th. The regulation of passengers was productive of no conflicting legislation under the old confederation. It was not the evil to be remedied, when the power to regulate commerce was given to congress. Supremacy of federal law is a sufficient remedy, and the court will not imply power further than necessary. 5th. This construction would throw upon congress a mass of legislation which it could not perform; and the tendency to alienation from the federal government would be increased by its incompetency to perform its duties. Among these laws are the laws regulating the discharge of ballast; the harbor regulations; the pilot laws of the states; the health laws; the laws of police as to the conduct of crews of vessels while in port; and a class of laws peculiar to the southern states, prohibiting traffic with slaves, and prohibiting masters of vessels from bringing people of color in their vessels. Such is the mass of legislation which must be abrogated by such a decision. But when we look at the course of commerce with foreign countries, at the commencement, the progress, and the conclusion of a voyage; it is difficult to estimate the extent to which such a conclusion must lead the court. The merchandise that is sent abroad is purchased in the interior, and bills of exchange on the northern cities, and on Europe, given for it. The merchandise that is brought home on the return-voyage, is often kept in the original package, and is transported from state to state, with benefit of drawback, until it is again shipped for a foreign market. How much of this falls within the power to regulate commerce with foreign states; and if exclusive, how much must be withdrawn from state legislation? There is no criterion furnished, by referring to the place where the business is transacted, and by declaring that all transacted within the country falls within state jurisdiction, and the residue within federal jurisdiction. The shipping of sailors is within the country, and that is regulated by congress; and so is their discharge and enforcement of the contract. On the other hand, pilotage, a contract commenced upon the ocean, is regulated by state laws.
Again, if the power to regulate commerce with foreign states be exclusive, that of regulating commerce between the states is exclusive also. Both powers are conferred in the same terms, and in the same clause. Apply the construction contended for by the defendant, and the legislative power of the states is at an end. They become mere municipal corporations; and all legislation relative to commerce, the great business of the country, becomes exclusively vested in congress. Under this head of the argument, therefore, we conclude that, conceding the passenger law to be a commercial regulation, the states have a power concurrent with congress to legislate, but subject to the controlling power of congress.
II. The law is not a commercial regulation, in the sense contemplated in the constitution; but a police regulation. It is a part of the system of poor laws, and intended to prevent the introduction of foreign paupers. This power of determining how and when strangers are to be admitted, is inherent in all communities. 2 Ruth. Inst. 476. Fathers of families, officers of colleges, and the authorities of walled cities, all have this power, as an incident of police. In states, it is a high sovereign power. It belonged to the states, before the adoption of the federal constitution. It is nowhere relinquished; nor can it be, with safety. It is essential to the very existence of some, and to the prosperity and tranquillity of all. That it was not intended to relinquish it, we infer: 1st. Because it was not prohibited to the states. 2d. Because it is not expressly granted to congress, but only as an incident to other powers; as the war power, the treaty-making power, or the power to regulate commerce. It may also be used by the states as a police regulation, as part of the system of poor laws, or to promote internal tranquillity. But because it is an incident to some of the federal powers, it can never be pretended that it is necessarily prohibited to the states. 3d. Because § 9, art. 1, of constitution concedes, in so many words, that the states have this power, and imposes a restriction upon the concurrent power of congress, until 1808. It declares, that 'the migration or importation of such persons as any of the states, now existing, shall think proper to admit, shall not be prohibited by congress prior to 1808.' What is the meaning of the words, 'the states shall think proper to admit?' States can only think through their laws; legislation is the thought of states. The very phrase shows that the states reserved the power to admit or prohibit; and consequently, to regulate the admission. The power of congress is suspended until 1808; but the power of the states remains as before the constitution. Did the arrival of the year 1808 extinguish that power in the states? Such a construction will hardly be contended for. After that year, congress is enabled to exercise one of the incidents to its powers, which before it was prohibited to do. It must exercise it, however, as a concurrent power, and supreme, when conflicting. Supposing congress had not chosen to pass any laws on this subject, after 1808, would the state laws necessarily be abrogated by the arrival of that year? Would the laws passed by the states, abolishing the slave-trade, before 1808, have been repealed? Such must be the conclusion, if the power be exclusive in its own nature.
Again, if the power to pass laws regulating the admission of passengers from Europe, falls under the power of regulating foreign commerce, that of regulating the arrival of passengers by land, falls under the power of regulating commerce between the states. If the one be exclusive, the other is exclusive; and all vagrant laws, all poor laws, and police regulations, become, at once, solely of federal jurisdiction. The laws of the southern states in relation to the intercourse and traffic with slaves, and to the introduction of colored persons into those states, also become the subjects of federal jurisdiction, and the state laws are abrogated. Here the counsel examined the character of those laws; and concluded by observing, that although he must not be understood as approving of the peculiar provisions of those laws, still it was obvious, that some legislation was necessary in reference to that population, and that the states clearly had the power to pass such laws. The poor laws, providing for sending back panpers to their place of settlement, in the adjoining counties of a bordering state, will share the same fate; and congress will have to provide a national system of poor laws. In our view, the law in question is altogether a police regulation; as much so as laws prohibiting entrance into a walled city after dark; laws prohibiting masters from bringing convicts into the state; or the laws prohibiting free negroes from being introduced among slaves.
The history of this law also throws some light upon its constitutionality. The federal constitution was adopted by nine states-the constitutional number-in 1788; and on the 13th of September of that year, a resolution was adopted by the old continental congress, announcing that fact; directing presidential electors to be chosen, and fixing the 4th of March 1789, for the commencement of the new government. Three days afterwards, on the 16th of September, the same body unanimously adopted a resolution, recommending to the several states to pass proper laws for preventing the transportation of convicted malefactors from foreign countries into the United States. When this resolution, so directly bearing upon the point in question, was adopted, there were present, Dana, the profound and enlightened jurist and framer of the government of the North-west Territory; Gilman, Williamson, Fox and Baldwin, members of the convention which formed the federal constitution; Hamilton and Madison, also members of that convention, and the eloquent expounders of that instrument. Jay, the third expounder, and the first chief justice of this court, was the secretary of foreign affairs, and, no doubt, recommended the passage of this law. If any contemporaneous authority is entitled to respect, here was one of the highest character. A resolution, at the very moment the new government was going into operation, recommending to the states to pass these laws, as peculiarly within their province. Under that resolution, the states acted. November 13th, 1788, Virginia passed a law forbidding masters of vessels from landing convicts, under a penalty of fifty pounds. South Carolina and Georgia passed passenger laws the same year. New Hampshire passed a passenger law in 1791; Massachusetts, in 1791. The New York passenger law was first passed 7th March 1788, and has been reenacted, with some modifications, at each subsequent revision of her laws. The resolution of congress extends to the very point in dispute. If the admission of convicts may be prohibited, the mode of bringing passengers may be regulated. The same rule is applicable to the admission of paupers, as to convicts. This will not be denied.
The defendant's counsel asserted, in the former argument, that the laws of 1799 and 1819 have regulated this intercourse. We deny it. Those laws were for other objects. It is not true, that a person conforming to those laws, may import passengers, in spite of state laws; because the laws of 1799 and 1819 were all the regulations that congress thought necessary.
A state law is not necessarily void, because persons violating it, are acting in conformity with an act of congress. Even in such cases, states acting under other powers may control individuals acting in conformity with laws of the federal government. A man may obtain a patent for making and vending a medicine, and a state may prohibit its sale. He may obtain a copyright for publishing a book, and the state may punish him, because it is libellous. A merchant may import gunpowder, or Chinese crackers, pursuant to the revenue laws; and the state of New York may prohibit the former from being landed, and the other from being sold in the city. He may also bring passengers, pursuant to the above-mentioned laws; and the legislature may compel him to give security that they will not become a public charge.
We therefore contend, 1st. That the power to regulate commerce is not exclusively in congress, but concurrent in the states; and that state laws are valid, unless conflicting, and only void, where repugnant. 2d. That the law in question is merely a police regulation, and not a regulation of commerce, in the sense of the constitution. 3d. That the power over this species of intercourse is vested in congress only; is incident to other powers, and not in any sense exclusive. 4th. That the law of New York is not repugnant to any existing treaties or laws of congress, and is, therefore, valid.
Such a conclusion produces no inconvenience; but, on the contrary, promotes a public good. It vests power where there is an inducement to exercise it. In congress, there is no such inducement. The west seeks to encourage emigration; and it is but of little importance to them, how many of the crowd are left as a burden upon the city of New York. There is, therefore, a hostile principle in congress to regulating this local evil. A construction that would vest this power exclusively there, would be contrary to the general design of our government; which is to intrust the care of local interests to local authorities; and only to congress, when necessary to the national welfare.
We trust that this court will not make a decision that, by absorbing so large a portion of state legislation in a power to regulate commerce, deemed exclusive by inference, will tend to weaken the authority of this court, and shake the stability of the government; but that, according to the design of the constitution, in conformity with its history, and in accordance with its own decisions and principles of interpretation, that it will decide that the states had power to pass such laws until 1808, without control; and after 1808, they had a concurrent power, subject to the control of congress; and that, until conflicting with federal laws, the law is valid and in force.
Quarantine Laws. Maine, Act 10th March 1821; New Hampshire, 3d February 1789; Massachusetts, Rev. Stat. 1834, 20th June 1799; Rhode Island, June 22d, 1797, and Rev. Stat. 1822; Connecticut, Rev. Stat. 1835; New York, 14th April 1820; New Jersey, 3d February 1812; Pennsylvania, 29th January 1818, and 2d April 1821; Delaware, 24th January 1797, and 1800; Maryland, November 1793; Virginia, 26th December 1792; North Carolina, Acts 1794, 1802 and 1817; South Carolina, 19th December 1795, 21st July 1800, and December 1809; Georgia, 23d December 1833; Louisiana, 19th February 1825; Alabama, 21st December 1823.
Passenger Laws. Maine, 24th February 1821, and 28th February 1835; New Hampshire, 18th June 1807, 15th February 1791, 14th June 1820; Massachusetts, February 1794, and Rev. Stat. 1834; Rhode Island, Revised Laws, 1822; Connecticut, October 1788, and Rev. Laws, 1835; New York, 11th February 1824; New Jersey, 28th January 1797, 10th February 1819; Pennsylvania, 29th January 1818, 1st February 1818; Delaware, 24th January 1797, 12th February 1829; Maryland, November 1809, 22d March 1833, and 17th February 1835; Virginia, 13th November 1788, 26th December 1792, and 11th March 1833; North Carolina, 1792, 1832, 1825 and 1830; South Carolina, 1788, and 19th December 1835; Louisiana, 16th March 1818, and 26th March 1835.
Pilot Laws. Maine, 24th February, and 10th March 1821; New Hampshire, 18th June 1805; Massachusetts, Rev. Stat. 1834; Pennsylvania, 2d April 1804, 20th March 1811, and 29th March 1803; Delaware, February 5th, 1819, and 31st January 1825; Maryland, November 1803, 1818, and 24th February 1824; Virginia, 10th February 1819, 26th February 1821, 27th January 1825; North Carolina, 1790, 1797, 1805, 1812, 1823 and 1831; South Carolina, 17th August 1807, July 31st, 1815; Georgia, 23d December 1835, 23d December 1830; Alabama, 23d December 1823, and 13th January 1828; Louisiana, 31st March 1805; 7th June 1806, and 1st March 1826.
Wreck Laws. Maine, 27th February 1821; Massachusetts, Rev. Stat. 1824; Connecticut, Rev. Laws, 1835, tit. 117; New York, 1 Rev. Stat. 690; New Jersey, Rev. Laws 716, and 7th March 1836; Delaware, 2d February 1786; Maryland, November 1799, and 3d January 1807; Virginia, 7th February 1819; North Carolina, Hayw. Dig. 668, and 1831; South Carolina, 1783.
Laws relating to Colored Passengers and Seamen. Delaware, 19th January 1826, and 7th February 1827; Maryland, November 1796, and November 1809; Virginia, 1 Rev. Laws, 428, 432, 443, 444, Act 24th February 1827, and 11th March 1834; North Carolina, Acts 1791, 1788, November 1819, 1825, 1826, 1830 and 1832; South Carolina, 18th December 1817, 19th December 1835; Georgia, 26th December 1817, 23d December 1833, and 26th March 1835; Louisiana, 26th March 1835.
Destroying Vessels. Maine, 27th February 1821; Massachusetts Rev. Stat. 1834, p. 725; Connecticut, Rev. Laws, 1835; New York, 2 Rev. Stat. 667; Maryland, November 1809; Delaware, 1782.
Harbor Regulations. Maine, 2d March 1821, 12th February 1828, and 11th March 1835; Connecticut, Rev. Laws, 1835, tit. 73; New Hampshire, 18th February 1703; Maryland, November 1807, 25th January 1806, and 13th March 1834; Pennsylvania, 29th March 1803; Virginia, 3d March 1821, 17th January 1829, and 7th April 1831; North Carolina, Rev. Laws, ch. 194; Louisiana, 17th February 1831; Alabama, 20th December 1825, 21st January 1832.
White, for the defendant, stated the case to be of great general importance, not only as it affects the commerce of the city of New York, but as it affects the laws of the United States, and the treaties entered into with foreign commercial nations. If the evils which the law of New York is intended to remedy or prevent, exist, or may occur, congress may pass a law to provide a remedy, as this legislation by the state of New York is not authorized by the constitution, and is void. It is in direct opposition to the power which is given by the constitution to congress to regulate commerce; and is in actual collision with that power as it has been exercised by congress. The law is not a law which prevents the admission of felons and passengers into New York, but which affects the navigation of all countries, as connected by their commerce with this country; and conflicts with the express stipulations of treaties for the regulation of that commerce. It introduces new arrangements, requires other forms, establishes additional penalties, and prohibits many things which are not so regulated by these treaties. This court will look at the consequences to follow from such a law; and by so doing, they will see how extensive must be its effects. The powers of the states to establish harbor laws, and to preserve the navigation of rivers, by preventing obstructions in them, are not denied; but these powers are of an entirely different character from the provisions of the law under consideration. The law regulates the whole passenger commerce of the port of New York; it imposes duties, requires stipulations, and creates liabilities which do not exist in the acts of congress relative to passengers, and enjoins duties on aliens which are not required by these laws. Congress having made all the provisions relative to passengers, which, having the power to regulate commerce, has been thought necessary by it; the requirements of the law of New York are in direct conflict with, and repugnant to, these provisions; and should, therefore, be declared void.
A reference to the law of New York will show the number and extent of the duties imposed on masters of ships and their owners by this law, beyond the demands of the law of the United States. The master must make a report of the passengers who were on board his vessel, during any part of the voyage; he must give a bond, with surety, to prevent their being chargeable to the city of New York; he must remove any of the passengers who may become chargeable; and penalties are imposed, and the forfeiture of the vessel is to be made by proceedings of an admiralty character, before a court of New York, if any neglect or violation of these duties shall occur. Do not these interfere and conflict with the powers given to congress to regulate commerce? Are they not in conflict with the passenger laws of the United States?
Two cases have been decided in this court which settle and determine all the questions which can arise in the case now presented. Before the case of Gibbons v. Ogden, it had not been fully ascertained, what was the constitutional interpretation of that part of the instrument which gives to congress the power 'to regulate commerce;' but this court, in that case, gave to it a full and a most satisfactory interpretation. The regulation of commerce by congress is, since that case was decided, well understood; and the only question which can be properly presented to the court now, is whether the principles of that case apply to this. The case will be found in 9 Wheaton, and the principles referred to are in pages 189, 197, of the report. Commerce is not merely buying and selling, and the exchanges of commodities. It is navigation, and the intercourse between nations. As it includes navigation, so it includes all the uses and purposes of it, as well the transportation of passengers and persons, as of goods, and everything connected with them, and with each of them. Such also is the definition of commerce in the case of Brown v. State of Maryland, 12 Wheat. 445, 447.
The examination of the statute of New York, which has already been submitted, fully establishes the position that the whole of its provisions are commercial regulations. Its application is to all passengers; and it operates on the business of navigation and the uses of shipping, as they are employed in one of the most profitable and important of its purposes. Sanitary regulations, quarantine laws which affect passengers, are, in England, made by acts of parliament, and are not police regulations; and even if such are, in part, the purposes of the act of the legislature of New York, they have gone far beyond those objects, and have embraced requirements which could not be constitutionally touched.
One of the great and prominent inducements to form the constitution, was the necessity, universally felt and acknowledged, to establish uniform commercial regulations. The importance of this was seen by all; and hence, the surrender of the power to regulate commerce, by the states to the general government. The first movement of the purpose to establish the present government, was by Mr. Madison, under the influence of the importance of a uniform commercial system; and from this arose the appointment of the convention, which adopted the present constitution. The main object of this government will be at an end, if the states can exercise the power which is claimed by New York under this law. As the government of the United States, in its relations with foreign powers, might be affected by state legislations on matters connected with commerce, it became essential, that everything which affected commercial intercourse should be exclusively given to the government of the United States. By this means, the relations of the government with foreign nations could be preserved; and the stipulations for equal privileges, of the citizens of foreign nations connected with the United States by commercial treaties, cannot be disturbed: without this, all would have been confusion.
Jones, for the defendant, considered this case as relieved from all difficulties as to the application of the provisions of the constitution of the United States to it. With the decision of this court in the case of Gibbons v. Ogden before them, it would be seen, that the law of New York is a regulation of commerce, and is necessarily invalid. The provisions of the law interfere with a very important part of the commercial operations of the country; it affects the employment of the ships and vessels of other states, besides those of New York: it goes across the ocean, and interferes there with the operations of packet ships, prescribing the description of persons who may be brought on board of them; and subjecting the masters and owners of the vessels to duties and liabilities, which do not exist under the laws of the United States, and cannot, therefore, be imposed by a state law.
There may be police regulations, which are not commercial; other regulations may be both those of police and of commerce. While the police of the cities and states of the Union is entirely within the power of the states; it does not follow as a consequence, that where commerce is interfered with by the rules of police, they are constitutional. Many regulations may be applied in the commercial cities to business matters, connected with commerce, which are not commercial; and the argument in favor of such regulations as those of the law of New York, derived from this state of things, is erroneous, as it confounded the thing with the use of it. The building of ships, the preservation of harbors, of wharves, the keeping open of rivers, may all be subjected to state laws. These are but the instruments of commerce, and not commerce itself. But if a state, by its laws, shall impose regulations connected with the uses of these things, which interfere with the operations of commerce, the constitutional power of congress is usurped, and the interference is void.
Let the array of state laws and state regulations, which has been presented by the counsel for the plaintiffs, be examined by these principles, and they will be found constitutional or void, as the examination will result. The number of these laws will not protect them, if they are obnoxious to the constitutional power of congress. They will all be in pari delicto, if they so interfere. No precedent will sanction unconstitutional laws. The argument, that a similar law of every state conflicts with the constitution, only shows the extent of the mischief, and the greater necessity for its cure.
It has been said by the counsel for the plaintiff, that the constitution of the United States, and the highest authority acting under it, has conceded the power exercised by New York to the states; and the ninth section of the constitution is referred to, which prohibits congress from interfering with the intercourse between the states for a period. It is known, that this provision had a special application to particular persons. But taking its provision in its general sense, it would appear, that without it, the power existed; and the provision was only to suspend the action of congress on the subject, the right of which was vested in that body. It was under the powers to regulate commerce, that the slave-trade was regulated; but the claim to interfere with that trade was not derived from the provision which related to migration and importation between states.
But it is said, that if this provision gives congress the power of interference, it also gives it or admits its existence in the states. This is not considered a correct deduction. If a state law prohibiting migration or importation, shall be brought in question; the point will arise, as to the power of the state to legislate upon it. The provision of the constitution is, that for a certain time, congress shall not prohibit the admission of those persons the the states may admit. The exception does not destroy the power, but suspends it. It is fully granted, and could have been executed instantly, but for the limitation; and when that expired, it came into active existence. It was, from that time, as full as if it had never been interfered with.
The argument which is presented on the resolution of congress, after the adoption of the constitution, and before it went into operation, which recommended the states to pass laws prohibiting the admission of felons, asserts that the states may prevent the admission of all persons, unless under onerous conditions. But no such inference is justifiable. The law of New York is a prohibition of emigration; and if carried into full effect, will entirely prevent the entrance of all persons from abroad, into the city of New York, the great throat of emigration. It applies to all passengers coming to New York; and operates on every ship or vessel taking passengers for New York, in any foreign country.
It is attempted to draw a distinction between this case, and the cases which exist by the great powers to regulate commerce under the constitution. This is said to be but an incident to those powers, and not important, or necessarily interfering with them; and therefore, within state legislation. But if this is an incident only, and may be taken away from the general government, the whole power to regulate emigration may be taken away; the whole passenger trade of the United States may be cut off; and thus one of the principal powers of the general government will be destroyed.
We have shown enactments by the national legislature, under the constitution relative to passengers, and thus congress have come in and occupied the ground. The right no longer rests upon the abstract question, whether it may be exercised. It has been used, and it is exclusive, from its very nature. If it be said, that provisions applicable to all cases have not been made; it may be said, with perfect safety, that they have not been thought necessary or proper. Their not having been made, is evidence, that congress did not deem them requisite. They are judges of the mode in which the power shall be used. The subject having been once within their view, it must be considered, that they have done with it as they considered it required; as in the case of a bankrupt law. By establishing a uniform system of bankruptcy, the whole power to legislate on the subject was occupied; and a state could not come in and legislate on matters which were not referred to, or provided for, in the legislation of congress, on the ground, that having been omitted, they could be so regulated. The wisdom of the legislature of the general government is to be regarded as having looked over the whole of the subject, and to have done all that ought to be done.
There is a direct conflict between the laws of the United States and the law of New York; for everything is in conflict with these laws on the subject of passengers, which adds to the regulations established by them. So also, the law of New York conflicts with treaties; for they impose upon the citizens and subjects of countries, united to us by treaties, restrictions not known to be general laws, and not contemplated as applicable to them. In fact, if such a law as this before the court may be passed by a state, a total prohibition of the entrance of a foreigner into the United States may be enacted by the legislature of the state; and then a treaty, containing assurances of ingress and protection to the citizens or subjects of a foreign state would cease to be the supreme law of the land.
It is denied, that congress, under the confederation, had the power to give to the states authority to pass laws relative to the admission of persons into their territorial limits. This would allow to that body authority to legislate over the constitution then coming into existence, and to supersede its provisions. The resolution was passed in the expiring hour of that body; and although many of those who formed the constitution were members of the confederate congress, that fact does not authorize the deduction, that, by adopting the resolution, they meant to give a construction to the constitutional provision with which it interfered. It was intended to operate on a present evil, and not to be a permanent law.
Ogden, for the plaintiff.-The defendant, in this case, states himself to be an alien, but does not state in his application to remove the cause from the superior court of the city of New York into the circuit court, from what country he came into the United States; but it is a fact worthy of notice, that, although a stranger among us, he has undertaken to teach us constitutional law. He assumes to set aside a law of New York, and to break down a policy which has existed for nearly thirty years, without, until now, a claim to object to its provisions or its purposes. The first act which contained provisions relative to passengers was called 'an act for the relief and settlement of the poor.' The act before the court is the same with that law, in purpose, and in many of its provisions.
The question is, whether the legislature of New York, by an act in force for the long period stated, have violated the constitution of the United States; and the act under consideration, therefore, is a nullity, having been passed in contravention of the constitution. The simple statement of the question is sufficient to show its importance.
It is the high prerogative of this court to examine the laws of the different states, and of congress, and the constitution of the United States. To do this, is the duty imposed upon the court by the constitution, confided to it by the people; and from the discharge and performance of which it will not shrink. The power to pronounce a law of a state legislature null and void, as being against the provisions of the constitution of the United States, is not only a great and important one; but, because it is so, it should be exercised with great care and caution. To suffer state legislatures to disregard the constitution of the Union, which all their members are sworn to support, would soon leave the constitution a dead letter, destroy its efficiency, and put an end to every hope of benefit to be derived from it. On the other hand, to take from the legislatures of the different states the powers legitimately vested in them, by a forced construction of the constitution, would be equally fatal to it; by exciting state pride and feelings against it; and thus driving it from that place in the good opinion, feelings and affections of the people, without which it cannot long exist. It is respectfully submitted, that the power to declare a state law void, which unquestionably exists in this court, should never be exercised in a doubtful case. It is an extremely delicate power; and should only be called into action, in cases so free from doubt, as to secure at once the acquiescence of state authorities and of the public. This case has been already before the court, and was argued at a former term. It is now under consideration a second time, the court having been divided in opinion after the first argument. This is evidence that the question involved in it is a doubtful one; and serves to afford, at least, a plausible ground of argument against any judgment being given against the validity of the state law.
Mr. Ogden stated, that he did not belong to that school of politicians, or lawyers, who are in favor of giving to the constitution of the United States a construction restricted to its words. All his reflections, and all his habits of thinking had induced him to give a more liberal interpretation and application to that instrument; preservation of the constitution, in its true spirit, is essential to the prosperity and freedom of this country. Give to it all its fair, proper and essential powers, and the hope may be safely entertained, that it will daily acquire more strength, and that it will extend, and continue to increase its benign influence over our people, as they increase in numbers, and as our country advances in wealth, in arts, and in all that is calculated to enlarge minds and augment the happiness of our citizens. On this occasion, it is not, therefore, proposed to advocate a restricted, limited and narrow construction of the constitution. But while this is properly and necessarily to be avoided, it to not to be stretched beyond its proper limits; or, like everything else, it will break and be destroyed.
It must always be borne in mind, when discussing and considering a question arising under the constitution, that it was not formed by a people who were without any government; but by the people of several independent states, all of whom had, in their respective territories, well-organized governments in full operation. These states, independent in themselves, had entered into certain articles of confederation; under which they had formed a union, for the purposes of contending for, and maintaining, their independence. When that was obtained, the articles by which they were bound together were found to be totally inadequate for their continued government as a nation. This was the reason why the present constitution was adopted by the people; as is, briefly, but strongly and clearly, declared in the preamble to the instrument. It may be proper to remark, and the influence of this fact in this case will be seen hereafter, that the articles of confederation were not made between the people of several states, but by the state governments; but the constitution was made, emphatically, by the people of the United States, and adopted by them in convention. The state governments could form no such constitution; they had no powers to do so, delegated or intrusted to them. The people are the sources of this power, both of the state and general governments; and after forming the constitution, they declared 'this constitution and the laws of the United States which shall be made in pursuance thereof, and all treaties, &c., shall be the supreme law of the land.' The constitution, then, so far as it extends, is, by the declared will of the people, supreme; and is so to be considered in all courts, and by all persons in the United States.
Before the constitution was formed and established, all the powers of government had been granted by the people, and vested by them, in their several state governments. By the constitution of the Union, the people granted to the government of the United States certain powers, for certain purposes and objects; and so far as these were so granted, and the states excluded from them, they were taken from the state governments, by those who gave these governments their existence; and by those who had a right and power to give and take away. That the constitution was a grant of powers by the people of the United States, is not only supported by the whole tenor of the constitution, but is so declared in express words. In the first article, it is said, 'all legislative powers herein granted shall be vested in congress,' &c. Whenever, therefore, a question occurs as to the constitutional powers of the general government, we must examine whether it be within the powers granted, or which are necessary to carry into effect the powers granted. But the powers of the general government are not now in question; the question is, whether the power exercised by the legislature of New York in passing the law now under consideration is prohibited; or rather whether it was taken away from the legislature, by the constitution. If both the state and the general government had been formed at the same time, the question would have been different. It would then have been, what powers were given to each?
In some enumerated cases, all powers are taken away. The power 'to coin money,' 'to issue bills of credit,' 'to pass tender laws.' In another class of cases, the state legislatures cannot act without the consent of congress. The states may not lay duties, except they are necessary for their inspection laws, unless congress affirms their laws imposing them. In this class of cases, the states may legislate with the consent of congress, and their acts will then have validity. Cases also exist, in which the power of states is taken away by necessary implication. This class includes cases only where the exercise of state legislation upon the subject is wholly inconsistent with the powers vested in the government; and where the two powers must necessarily conflict with each other. Now, if the law of the state of New York be unconstitutional, it is not because it is one of those cases in which all state legislation is expressly prohibited by the constitution for it is not enumerated among the express prohibitions; nor because the consent of congress has not been obtained to the law, for it is not of the description of such cases; it can only be invalid, because the power to pass it is taken away by necessary implication.
Is the law repugnant to the powers vested in the general government? Admit it to be a regulation of commerce, is it, therefore, void? Power is given to congress to regulate commerce, but there is nothing in the constitution which compels congress to do so; and it might have been left to the action of the states. Before the constitution was formed, the states had commercial regulations; and if the power given to congress was exclusive, all these laws were repealed and void, when the constitution came into operation. This could not be, and it was not so understood by any state in the Union; every state has acted under a different interpretation of the constitution.
What would have been the situation of the commerce of the country, if, on the adoption of the constitution, the whole of the commercial regulations of the several states had become invalid? Until congress should legislate, all would have been confusion; and if the legislation had been incomplete, the evils of such imperfection would remain. No state laws, however long in force and necessary, could have been invoked to supply the deficiencies. But if the state laws are left in force, until some act of congress should come in conflict with them, when they must yield; every principle of necessity or justice seems to be preserved.
The case of Sturges v. Crowinshield, which came before this court, decided, that a state insolvent law was invalid, because it impaired the obligation of a contract, and came, therefore, within the provision of the constitution which has taken the power from the states to pass such laws. In the case of Gibbons v. Ogden, it appeared, that a law of New York had given to Livingston and Fulton the exclusive right to navigate the waters of New York, by steamboats. The navigation of these rivers was a part of the commerce of the United States, a part of the coasting-trade which was open to all the citizens of the United States, in relation to which congress had exercised the powers granted to them by the constitution. They had made it necessary for all coasting vessels to take out licenses, which entitled them to navigate these waters; and the law of the state came directly in conflict with the act of congress, and with the licenses under it, and was, therefore, invalid. The case of Brown v. State of Maryland, in 12 Wheat., and all the cases which have been cited, if examined, will show that none of the laws were declared invalid, because they were regulations of commerce, but because they came in conflict with rights derived under acts of congress which are declared to be the supreme law of the land.
It is no answer to this argument to say, that congress have legislated on the subject of the regulation of commerce, and has, therefore, exercised the powers vested in them by the constitution, to the exclusion of the states. Unless congress have legislated on the particular branch of the subject; unless they have so legislated, as that their law, and the law of New York, before the court, are in collision with each other, no necessary implication requires, that the state power should be considered as taken away. In several cases, when powers are given to congress, because the public interest requires there should be a general legislation on the subject, this court has declared that the state power to legislate on it, has not been taken away, until congress actually exercises the power granted to them. This is the case in bankruptcy, and in the laws relative to naturalization. As to the first, cited 10 Wheat. 196; as to naturalization, Collet v. Collet, 2 Dall. 294.
By the constitution, congress have power to regulate commerce with foreign nations, and with the Indian tribes. At the time the constitution was adopted, in many of the states, there were large bodies of Indians. In New York, the whole of the now populous western part of the state was occupied by Indians. Congress did not legislate on the subject of commerce with the Indians, until many years after the power was granted to it. During the whole of this period, was not the trade with the Indians left to the regulation of the states? If the power of congress as to general commerce was exclusive, was it not equally so, as to the trade with the Indians?
It may be shown, that congress have recognised the powers of the states relative to this subject, and the exercise of it. A power to regulate commerce must necessarily include the means and manner of carrying it on. The power to regulate pilots is, therefore, given to congress; but it has not been considered as exclusive. The states have regulated pilots, and have adopted different systems for their government, and to induce or compel the performance of the duties they assume. The state regulations have been recognised by congress, in the 'act regulating light-houses,' passed August 1789. (1 U.S. Stat. 54, § 4.)
As to the proposition that a law of a state is valid, when congress recognises it, and that it has its validity from this recognition; it is denied, that congress have the power to make laws in any other form but by express legislation. A law which is unconstitutional, is not changed in its character by the recognition of congress. So, too, the admission that state laws are good, until congress legislate on the same subject-matter, is an admission that the power of congress over the subject is not exclusive. Quarantine laws are commercial in their nature, and they are the regulations of the states. They have been recognised by an act of congress. (1 U.S. Stat. 619.) These laws declare how, where and when, goods imported under the authority of the laws and treaties of the United States, my be landed; and thus they materially interfere with, and affect commercial and shipping transactions. If, to a certain extent, the passenger act of New York is a commercial regulation; in order to invalidate it, its conflict with the law of the United States on the subject must be shown. There is no incompatibility between them. All the provisions of the laws of the United States are left in full force, and the New York law superadds other regulations, deemed necessary for the prevention of the introduction of paupers, and to prevent the city being charged with the support of the outcast population of foreign nations.
But if the court shall be of opinion, that the power of congress to regulate commerce is exclusive, and that it is taken from the states by the constitution; the question is presented, is this act of New York a regulation of commerce? It is denied to be such. In the case of Brown v. State of Maryland, 12 Wheat. 441, Mr. Chief Justice MARSHALL, to whose every word upon constitutional questions great attention is most justly due, and from whose expositions of the constitution, every one who reads them will derive instruction, says:-'In our complex system, the object of the powers conferred on the government of the Union, and the nature of the often conflicting powers which remain in the states, must always be taken into view, and may aid in expounding the words in any particular clause.' It is admitted, in this opinion, that there are powers which remain in the states, which must often conflict with the powers of congress; and in these cases, we must always refer to, and take into view the object of the powers conferred on the general government of the Union. Now, without entering into an examination of any of the powers vested in congress, it is undoubtedly true, that the object of the people was to form a general national government, and to take from the states no powers not necessary for that object. Health laws, poor laws, laws respecting the landing and storing of gunpowder, are all necessary for the safety and security of the particular states, or of the inhabitants of those states; and they are in nowise necessary or proper to be intrusted to the general government, and do not, therefore, come within the object for which it was established. They are not embraced within its words; and are, therefore, not taken from, but necessarily remain proper subjects of the state regulation; although they may in some respects have an influence and bearing on the commerce of the country.
In the case of Gibbons v. Ogden, 9 Wheat. 203, the chief justice says: 'That inspection laws may have a remote and considerable influence on commerce, will not be denied; but that a power to regulate commerce is the source from which the right to pass them is derived, cannot be admitted. The object of inspection laws is, to improve the quality of articles produced by the labor of the country; to fit them for exportation; or, it may be, for domestic use. They act upon the subject, before it becomes an article of foreign commerce, or of commerce among the states, and prepare it for that purpose. 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.' And in the case of Brown v. State of Maryland, in 12 Wheaton, the same great constitutional expounder says, 'the power to direct the removal of gunpowder, is a branch of the police power which unquestionably remains and ought to remain in the states.'
The power to regulate commerce is not that from which the right to pass the law is derived. It comes from a much higher source-from those great conservative rights which all governments have, and must have, and must maintain, and must preserve. The object of all well-regulated governments is, to promote the public good, and to secure the public safety; and the powers of that legislation necessarily extends to all those objects; and unless, therefore, in any particular case, the power is given to the general government, it necessarily still remains in the states. It is under these principles, that the acts relative to police, which may operate on persons brought into a state, in the course of commercial operations, and the laws relative to quarantine and gunpowder, are within the power of the states. They are not national in their character, and are not, therefore, essentially within national regulation. They are protected by the principles laid down in the cases referred to, by Mr. Chief Justice MARSHALL; when, in the complex system of our governments, they may come into conflict with the powers of the general legislation. What are poor laws but police regulations? And are they not as essential to the security of all the inhabitants of a city, as are health laws, and all laws of the same character? The law in question, on its face, purports to be a poor law; and all its provisions relate to that subject. The power to pass poor laws involves in it the right to regulate the whole subject; and if the public, on principles of humanity and justice, are bound to provide for the poor, and can compel individuals to contribute to their support, may not the law prevent the influx of strangers who have no claims on the community into which they would come, and who are sent among us by those whose duty it was to provide for and sustain them. In Brown v. State of Maryland, the court say, '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. On this principle, if the right to pass poor laws exists in the state, the extent of it is to be decided by the legislatures of the states.'
It has been the policy of the general government, to encourage the emigration of foreigners to this country. With the wisdom of that policy, we have nothing to do; congress are the sole judges of it. They have the power to regulate the manner in which they shall be brought here, under the power to regulate commerce, and they have the sole power of holding out encouragement to them to come here, by a naturalization system. But when they once arrive in this country, they must submit to the poor laws of the state in which they land; and with which congress have nothing to do. These laws have always regulated them; and they take care, that after being brought into the country, they shall not become burdensome to it. The powers of congress apply to their transit from abroad; they extend over the navigation employed for this purpose, and they go no further. No state can interfere with any such provisions; but this does not restrict the authority of the state to interfere, for its own safety, after all objects of the legislation of congress are accomplished. If congress may regulate passengers from one state to another, their power will extend to compel the states to permit paupers to pass from one state into another state. This, or any power to interfere with the regulations a state may adopt upon matters of this kind, will not, and never has been claimed.
A treaty between the United States and a foreign nation cannot annul a state law, rightfully and constitutionally enacted by a state, and in reference to matters within the power of her legislature. Treaties refer to commercial intercourse and advantages; and the law under the consideration of the court does not interfere with the provisions of any treaty.
The law of a state may require more than congress have thought necessary; but if the additional provisions impose duties which are required for police and internal safety, such as the laws relative to paupers and gunpowder, and they do not interfere with nor interrupt the action of the laws of the United States, they are not exceptionable.
BARBOUR, Justice, delivered the opinion of the court.

## Notes

* ↑ For the opinion of Judge THOMPSON, in the court below, see 2 Paine 429.
* ↑ This act is entitled 'an act for the better settlement and relief of the poor.' It is not a passenger law.
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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