sistent with the construction here given. Were they, however, directly opposed to it, they could not, by any known rule of construction, control or modify the plain and unambiguous language of the clause in question. The conclusion, to my mind, is therefore irresistible, that there are two separate and distinct classes of persons intended to be provided for by this clause. Although they are both subjects of commerce, the latter class only is the subject of trade and importation. The slaves are not immigrants, and had no exercise of volition in their transportation from Africa to the United States. The owner was bound to enter them at the custom house, as any other article of commerce or importation, and to pay the duty imposed by law; whilst the persons of the first class, although subjects of commerce, had the free exercise of volition, and could remove at pleasure from one place to another; and when they determined to migrate or remove from any European government to the United States, they voluntarily dissolved the bond of allegiance to their sovereign, with the intention to contract a temporary or permanent allegiance to the government of the United States, and if transported in an American ship, that allegiance commenced the moment they got on board. They were subject to, protected by, the laws of the United States to the end of their voyage. Having thus shown that there are two separate and distinct classes included in, and provided by, the clause of the Constitution referred to, the question arises, how far the persons of the first class are protected by the Constitution and laws of the United States from the operation of the statute of New York now under consideration? The power was conferred on Congress to prohibit migration or importation of such persons into all the new States, from and after the time of their admission into the Union, because the exemption from the prohibition of Congress was confined exclusively to the States then existing, and left the power to operate upon all the new States admitted into the Union prior to 1808. Four new States having been thus admitted within that time, it follows, beyond controversy, the power of Congress over the whole subject of migration and importation was complete throughout the United States after 1808.

The power to prohibit the admission of "all such persons," includes, necessarily, the power to admit them on such conditions as Congress may think proper to impose; and, therefore, as a condition, Congress has the unlimited power of taxing them. If this reasoning be correct, the whole power over the subject belongs exclusively to Congress, and connects itself indissolubly with the power to regulate commerce with foreign nations, How far, then, are these immigrants protected, upon their arrival in the United States, against the power of State statutes? The ship, the cargo, the master, the crow, and the passengers are all under the protection of the laws of the United States to the final termination of the voyage; and the passengers have a right to be landed and go on shore under the protection of and subject to these laws only, except so far as they may be subject to the Quarantine laws of the place where they are landed; which laws are not drawn in question in this controversy. The great question here is, where does the power of the United States over this subject end, and where does the State power begin? This is, perhaps, one of the most perplexing questions ever submitted to the consideration of this court.

A similar question arose in the case of Brown v. the State of Maryland, 12 Wheat., 419, in which the court carried out the power of Congress to regulate commerce with foreign nations, upon the subject then under consideration, to the line which separates it from the reserved powers of the States, and plainly established the power of the States over the same subject-matter beyond that line.

The clause of the Constitution already referred to in this case, taken in connection with the provision which confers on Congress the power to pass all laws necessary and

proper for carrying into effect the enumerated and all other powers granted by the Constitution, seem necessarily to include the whole power over this subject; and the Constitution and laws of the United States being the supreme law of the land, State power cannot be extended over the same subject. It therefore follows that passengers can never be subject to State laws until they become a portion of the population of the State, temporarily or permanently; and this view of the subject seems to be fully sustained by the case above referred to. Were it even admitted that the State of New York had power to pass the statute under consideration, in the absence of legislation by Congress on this subject, it would avail nothing in this case, because the whole ground had been occupied by Congress before that act was passed, as has been fully shown by the preceding opinion of my brother Catron. The laws referred to in that opinion show conclusively that the passengers, their moneys, their clothing, their baggage, their tools, their implements, etc., are permitted to land in the United States without tax, duty, or impost. I therefore concur in the opinion, that the judgment of the court below should be reversed.

Justice Catron concurred in the opinion delivered by Justice McKinley, and adopted it as forming part of his own, so far as Justice McKinley's individual views are expressed, when taken in connection with the opinion delivered by himself; and Justice Wayne also concurred with Justice McKinley in his interpretation of the ninth section of the first article of the Constitution, and said that it "includes within it the migration of other persons, as well as the importation of slaves, and in terms recognizes that other persons as well as slaves may be the subjects of importation and commerce," having in view, no doubt, such as convicts and paupers, who do not come here of their own volition, but are transported hither by, and at the expense of, European governments.

Chief Justice Taney could not, however, assent to the opinion expressed by Justice McKinley, and Justices Daniel, Nelson and Woodbury concurred with him in dissenting. See opinions of the Judges of the Supreme Court of the U. States, in the cases of Smith v. Turner and Norris v. City of Boston, Dec. Term, 1848, published in pamphlet form by order of Congress. The Chief Justice says:

If the word can be applied to voluntary immigrants, the construction put upon it by those who opposed the Constitution is certainly the just one; for it is difficult to imagine why a power should be so explicitly and carefully conferred on Congress to prohibit immigration, unless the majority of the States desired to put an end to it, and to prevent any particular State from contravening this policy. But it is admitted on all hands, that it was then the policy of all States to encourage immigration, as it was also the policy of the far greater number of them to discourage the African slave trade. And with these opposite views upon these two subjects, the framers of the Constitution would never have bound them both together in the same clause, nor spoken of them as kindred subjects which ought to be treated alike, and which it would be the probable policy of Congress to prohibit at the same time. No State could fear any evil from the discouragement of immigration by other States, because it would have the power of opening its own doors to the immigrant, and of securing to itself the advantages it desired. The refusal of other States could in no degree affect its interests or counteract its policy. It is only

upon the ground that they considered it an evil, and desired to prevent it, that this word can be construed to mean freedom, and to class them in the same provision and in the same words, with the importation of slaves. The imitation of the prohibition also shows that it does not apply to voluntary immigrants. Congress could not prohibit the migration and importation of such persons during the time specified, “in such States as might think proper to admit them." This provision clearly implies that there was a well known difference of policy among the States upon the subject to which this article relates. Now, in regard to voluntary immigrants, all the States, without exception, not only admitted them, but encouraged them to come; and the words, "in such States as may think proper to admit them," would have been useless, and out of place, if applied to voluntary immigrants. But in relation to slayes it was known to be other. wise; for while the African slave trade was still permitted in some of the more southern States, it had been prohibited many years before, not only in what are now called free States, but also in States where slavery still exists. In Maryland, for example, it was prohibited as early as 1783. The qualification of the power of prohibition, therefore, by the words above mentioned, was entirely appropriate to the importation of slaves, but inappropriate and useless in relation to freedom. They could not and would not have inserted it, if the clause in question embraced them.

I admit that the word migration, in this clause of the Constitution, has occasioned some difficulty in its construction; yet it was, in my judgment, inserted to prevent doubts or cavils upon its meaning, for as the words imports and importation in the English laws had always been applied to property and things as contradistinguished from persons, it seems to have been apprehended that disputes might arise whether these words covered the introduction of men into the country, although these men were the property of the persons who brought them in. The framers of the Constitution were unwilling to use the word slaves in the instrument, and so described them as persons; and so describing them, it employed a word that would describe them as persons, and which had uniformly been used when persons were spoken of, and also the word which was always applied to matters of property. The whole context of the sentence, and its provisions and limitations, and the construction given to it by those who assisted in framing the clause in question, show that it was intended to embrace those persons only who were brought in as property.

Justice Woodbury, in noticing this section, in delivering his opinion in the same cases, said:

"This they consider as a grant of power to Congress to prohibit the immigration from abroad of all persons, bond or free, after 1808, and to tax their importation at once and forever, not exceeding ten dollars per head." (See 9 Wheaton, 230; Justice Johnson: 15 Peters, 514; Justice Johnson-brig Wilson.)

But it deserves special notice, that this ninth section is one entirely of limitation of power rather than a grant of it; and the power of prohibition being nowhere else in the Constitution expressly granted to Congress, the section seems introduced rather to prevent it from being implied, except as to slaves, after 1808, than to confer it in all cases. (1 Brockenbrough, 434-brig Wilson.) If to be implied elsewhere, it is from the grant to regulate commerce, and by the idea that slaves are subjects of commerce, as they often are. Hence, it can go no further than imply it as to them, and not as to free passengers. Or if to " regulate commerce" extends also to the regulation of mere navigation, and hence to the business of carrying passengers, in which it may be employed,

it is confined to a forfeiture of the vessel, and does not legitimately involve a prohibition of persons, except when articles of commerce, like slaves. (1 Brockenbrough, 432.) Or finally, however, (for the power may extend under either view,) it is still a power concurrent in the States, like most taxation, and much local legislation as to matters connected somewhat with commerce, and is well exercised by them when Congress does not, as here, legislate upon the matter either of prohibition or of taxation of passengers. It is hence, that if this 9th section was a grant to prevent the migration or importation of other persons than slaves, it is not an exclusive one, any more than that to regulate commerce, to which it refers; nor has it even been exercised so as to conflict with State laws or with the statute of Massachusetts, now under consideration. This clause itself recognizes an exclusive power of prohibition in the States, until 1808. And a concur rent and subordinate power on this by the States, after that, is nowhere expressly forbidden in the Constitution, nor is it denied by any reason or necessity for such exclusiveness. The States can often use it more wisely than Congress, in respect to their own interests and policy. They cannot protect, their police, or health, or public morals, without the exercise of such a power at all times and under certain exigencies--as forbidding the admission of slaves and certain other persons within their borders. One State, also, may require its exercise from its exposures and dangers, when another may not. So it may be said as to the power to tax importation: if limited to slaves, the States could continue to do the same when they pleased, if men are not deemed “imports." But to see for a moment how dangerous it would be to consider as vested a prohibitory power over all aliens exclusively in Congress, look to some of the consequences. The States must be mute and powerless.

If Congress, without a co-ordinate or concurrent power in the States, can prohibit other persons as well as slaves from coming into States, they can of course allow it without; and hence can permit and demand the admission of slaves as well as any kind of free persons, convicts, or paupers, into any State, and enforce the demand by all the overwhelming power of the Union, however obnoxious to the habits and wishes of the people of a particular State. Looking at an interference like this, it has therefore been said that under this section Congress cannot admit any persons whom a State pleases to exclude. (9 Wheat., 230-Justice Johnson.) This rather strengthens the propriety of the independent action of the State here excluding conditionally, than the idea that it is under the control of Congress.

Besides this, the ten dollars per head allowed here specially to be collected by Congress on imported slaves, is not an exclusive power to tax, and would not have been necessary or inserted if Congress could clearly already impose such a tax on them as "imports," and by a "duty" on imports. It would be not a little extraordinary to imply by construction a power in Congress to prohibit the coming into the States of others than slaves or of mere aliens, on the principle of the alien part of “the alien and sedition laws," though it never has been exercised as to others permanently; but the States recommended to exercise it, and seventeen of them are now actually doing it. And equally extraordinary to imply, at this late day, not only that Congress possesses the power, but that, though not exercising it, the States have occupied it concurrently, or even in subordination to Congress. But beyond this the States have occupied it concurrently as to slaves no less than exclusively in respect to certain free persons, since as well as before 1808; and this, as to their admission from neighboring States no less than from abroad. (See cases before cited, and Butler v. Hoffer, 1 Wash. c. c., 500.) The word "migration" was probably added to “importation," to cover slaves when regarded as persons rather than property, as they are for some purposes. Or if to cover

others, such as convicts and redemptioners, it was those only who came against their will or in a quasi servitude.

In the Constitution, in other parts as in this, the word "persons" is used not to embrace others as well as slaves, but slaves alone. Thus, in the 2d section of the first article, "three-fifths of all other persons," manifestly means slaves; and in the 3d section of the fourth article, "no person held to service or labor in one State," &c., refers to slaves. The word "slave" was avoided, from a sensitive feeling; but clearly no others were intended in the 9th section. Congress so considered it, also, when it took up the subject of this section in 1807, just before the limitation expired, or it would then probably have acted as to others, and regulated the migration and importation of others as well as of slaves. By forbidding merely "to import or bring into the United States, or Territories thereof, from any foreign kingdom, place, or country, any negro, mulatto, or person of color, with intent to hold, sell, or dispose of such negro, mulatto, or person of color, as a slave, or to be held to service or labor," it is manifest that Congress then considered this clause in the Constitution as referring to slaves alone, and then as a matter of commerce; and it strengthens this idea, that Congress has never since attempted to extend this clause to any other persons, while the States have been in the constant habit of prohibiting the introduction of paupers, convicts, free blacks, and persons sick with contagious diseases, no less than slaves; and this from neighboring States, as well as from abroad.

There was no occasion for that express grant, or rather recognition, of the power to forbid the entry of slaves by the General Government, if Congress could, by other clauses of the Constitution, for what seemed to it good cause, forbid an entry of everybody as of aliens generally; and if Congress could not do this generally, it is a decisive argument that the State might do it, as the power must exist somewhere in every independent country.

Justice Daniel expressed himself as follows:

This 9th section of the fourth article of the Constitution has, on a former occasion, been invoked in support of the power claimed for the Federal Government. The supporters of the alien law, passed in 1798, endeavored to draw from this very section a justification of that extraordinary enactment; and as their argument deduced from it is, perhaps, as cogent as any likely to be propounded at this day, it may be properly adverted to as a fair sample of the pretension advanced in this case, and of the foundation on which it seeks to plant itself. The argument alluded to was by a committee of the House of Representatives, and in these words: "That as the Constitution has given to the States no power to remove aliens during that period of the limitation under consideration, in the mean time, on the construction assumed, there would be no authority in the country to send away dangerous aliens; which cannot be admitted." Let the comment of a truly great man on these startling heresies expose their true character. "It is not," says Mr. Madison, "the inconclusiveness of the general reasoning on this passage which chiefly calls the attention to it. It is the principle assumed by it, that the powers held by the States are given to them by the Constitution of the United States; and the inference from this principle, that the powers supposed to be necessary, which are not so given to the State governments, must reside in the Government of the United States. The respect which is felt for every portion of the consummated authorities forbids some reflections which this singular paragraph might excite; and they are the more readily suppressed, as it may be presumed, with justice, perhaps, as well as candor, that inadvertence may have had its share in the error. It would be unjustifiable delicacy,