Richmond enquirer. [volume] (Richmond, Va.) 1815-1867, 1849-05-01

FULLY discussed in the opinloGs delivered on the
license cases, reported IN How.
do not propose 10 repeat here what then said
or was said by Other members oi The Cou, With
whom | agreed. II will appear by hr report OF
the case that five Of the Justices Of This Court be-
ins a majority Of the whole bencn, held that The
grant Of the mower 10 Congress was not pruhlbi-
lion 10 the States 10 make such egui a,ons as they
deemed necessary in their own ports and harbors
for The convenience OF Trade or the security oil
health. and that such regulations were valid IN.
les they came in conflict with an act OF Con-
aress. Amer such opinions jnticay delivered
had supposed that question 10 BE- settled, 50 ia!
az any question upon The Construction OF The con.
siiIuliun ought to be regarded a closed BY the
decision OF This Coun. do uol, however, obiec
TO the revision of il, and am quite willing thai
il shall be regarded hereafter as The law of hi,
Conrt that lis opinion upon the construction o.
the constitution is always open 10 discussion
when il is supe6aed 10 have been founded in er.
ror, and that us judicial authority should hereai
Ter depend altogether on the force Q! The reason
ing by which il i supported.
Referring to my opinion on that occasion and
the reasoning by which il is maintained, as
showing what still think upon the subject,
desire now so add to it reference TO the lhlr'
ty-second number of the Federalist, which shows
that The construction given TO this clause Of the
constitution Of majority of the justices Of this
court is The same that was given to il al the
time of its adoption, by the eminent men Of the
day who were concerned in framing it, and &C
tive 10 supporting it. For in that number il is
explicitly affirmed, "lhat Notwithstanding tie
affirmative grants Of general authorities, there
has been the most pointed care 10 those cases
where il was deemed improper, that the like au-
thorites should reside in the States to insert ne
gatyc clauses prohibiting The exercise of them
by the States The grant Of general author.
lly 10 regulate commerce is not therefore pro-
hibilion 10 the States 10 make any regulations
concerning il within their own territorial limits,
not in conflict with the regulations Of Congress
But pass from this objection. which was suf-
6cienty discussed in the license cases, and come
10 the next objection founded on the same clause.
Il is this: that the law il question IS regula
ton Of commerce aud is n conflict with the re-
eualions Of Congress and with treaties, and must
Well to the paramount authority over this sub
ject granted to The Unite, States.
Il is a sufficient answer 10 this argument, IL
say, that no treaty or &C oil Congress has been
produced which gives otallempts 10 give 10 all
aliens the right 10 land Stale. The ac, o
March ., 1899, Oh. %, 46, has been releret
20 and much pressed u argument. But thIs
law obviously does nciing more than exempt
certain articles belongil, 10 passenger IRON
the duties which the Unted States bad right
TO exact il they thought proper. Undoubtedly
the law pre.supposes ,hs the passenger will be
permitted 10 LAND, But does no! attempt Il
confer on him the right Indeed The cons'ruc-
lion ccuiended ior wonlde startling one IL
the States il Congress hashe power now Claim
Ell for H. For neither ihi.nor any other law oil
Congress prrscrDeS The naracter or Condition
Of the persons who may taken on board IN 4
foreign poIt 10 be brougnto me United STATES
Il makes no regulations on the SUBJECT, an
leaves the selection ALTOGETHER 10 the discretion
and pleasure ct the ship,Wner or snip master
| The ship owner as well athe snip master IS 10
many cases foreigner, ctine sometimes per
| hans, under The il1uens OF foreign govern
men,s, or foreign cries, al having no common
| interest or sympathy VII the people oi inc
| United Safes, AID "homay De lar more "iS'
posed TO bring away the orst and most danger
Gus portion Of the poputI, rather man he
moral aad Industrious cizen And as Tue &c,
| OF 1899 ,pe-Ls of T.Jn5o-s generally, ana
makes no distinction alto their character or
health If the argumenbf The counsel for the
plaintiff can be maintai.d, ard tins law gives
every passenger whchie ship-owner has Sc
ected and brought Within the RICH, To land,
then this act of ConeTts has not only taken
| away from the States thGiat ~ determine VINO
is and who is not fitto be received among
them, but has delegated tbs high and deiicate
power TO foreign ship uis,e:s and foreign snip
owners. Aud il he hastakn on board tenants
Of their aims houses q warehouses;, or lelons
from their jals-if tongess has the power
commended for, and ills ct Of Congress will
bear the construction giUn to It, aud gives 10
every passenger the riht tland, then this mass
OF paupcrism and vice ma be poured Out upan
the shores of State, in opposition to lis laws,
and the State authorities ire not permitted 10
resist or prevent it.
II is impossible, upon ay sound prncPle OF
construction, so to inerpet this law OF Con
gress. Its language will lot justify il, nor can
such be supposed to hare sen Lao policy OF .ne
! United States or such it disposition TOWARDS
the States. The GenraI Government merely
| intended to exercise Is powers 10 exemp'ina
the articles menlone from dutles-leafins y
| 10 the States TO determine whelher II was com
patiblc with their intees and safety 10 permi'
| the peis to land AID this power the states
have always exercised before and since the pas
sage of this act Of Cngiess.
The same answer nay be given 10 lhe argn
ment on Treaty stipllanons. The treaty o.
1894, Article Ia, referred to and relied on, Is
no longer in force. hut the same provision =
however, acknowledgements in the hrst ar
ticle of the Conventin with Great Britain o.
July 3, 1915, with tbs exception that 1t puts
British subjects in thsrespcct on the S me loot
ing with other foreigners. But the permission
there mutually giyento reside, and hire house:
and warehouses, and to trade and traffic, is il
express terms made ublect to the laws of In,
two countries, respectively. Now the PriSiiese'
here given within the several States are all re
oulated by State laws, and The reference 10 INC
laws of this country necessarily aPpiies
them, and subjects the foreigners 10 lheir DC
cision and control. lDdecG the treaty may oe
said to disavow the constitution now attempted
to be given 10 il.
Nor do | see how anyarsument against the
validity Of the Safe law can be dawn from Int
acl of Congress- Of 1919. On The contrary, Thu
ac, seem, accurately TO mark the line OF division
between The powers OF he General and State
Governments over this subject, and The powers Q
The former have been exercised in the passage o
this law without encroachng on the rights oil lht
later. Ii regulates the uumbeT oil passengers
which may be taken on board and brought i6
this country from foreign ports in proportion &c
The tonnage OF the vesse'; and directs that, al The
lime of making his entry al the custom house
The captain shall deliver 10 The collector list d
the passengers taken on beard al any foreign por
or place stating their age, sex and occupation
and whether they intend 10 become inhabitants
OF this country, and how many have died on The
voyage: and This list is TO be returned quarterly 10
The State Department, 10 be laid before Congress
Bu, The law makes no provision Tor their land.
ing nor does ii require any inspection as 10 lheil
health or condition. Those matters are evident
" n,ended 10 be LEFT 10 STATE government when
The voyage has ended, by me proper custom
house entry For il cannot be supposed that II
The legislature OF lhe United States intended by
this law 10 give The passengers a right 10 land
i, would have been so regardless OF The lives and
health and interests Of our own Citizens as 10
make no inquiry and no examination upon a
subject which 50 nearly concerned them. But II
direc,s no inquiries evidently because the power
was believed TO belong 10 The States. And as the
landing OF the passengers depended on The SAFE
laws The inquiries as 10 their health aud conti
ton properly belonged 10 The State authorities
The acl of 1919 NAV fairly be taken as denoline