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principles of public security and sound morals, as that to exclude persons. And yet who does not know that slaves have been prohibited admittance by many of our States, whnther coming from their neighbors or abroad? And which of them cannot forbid their soil from being polluted by incendiaries and felons from any quarter ?
Nor is there, in my view, any power conferred on the General Government which has a right to control this matter of internal commerce or police, while it is fairly exercised so as to accomplish a legitimate object, and by means adapted legally and suitable to such end alone. New Hampshire has, for many years, made it penal to bring into her limits paupers even from other States; and this is believed to be a power exercised widely in Europe among independent nations, as well as in this country, among the States. - New Hampshire Revised Statutes-—Paupers, 140.
It is the undoubted and reserved power of every State here, as a political body, to decide, independent of any provisions made by Congress, though subject not to conflict with any of them when rightful, who shall compose its population, who become ils residents, who its citizens, who enjoy the privileges of its laws, and be entitled to their protection and favor, and what kind of property and business it will tolerate and protect. And no one government, or its agents or navigators, possess any right to make another State against its consent, a penitentiary, or hospital, or a poor-house farm for its wretched outcasts, or a receptacle for its poisons to health, and instruments of gambling and debauchery.
There may be some doubt whether the General Government, or each State, possesses the prohibitory power, as to persons or property of certain kinds, from coming into the limits of the State. But it must exist somewhere ; and it seems to me rather a police power, belonging to the States, and to be exercised in the manner best suited to the tastes and institutions of each, than one any where granted to or proper to the peculiar duties the General Government.
Or, if vested in the latter at all, it is but concurrent.
Justice McLean did not concur, however, with the Chief Justice and Justice Woodbury, as to the power of States over commerce, but thus distinctly recognized the internal police power of the States :
“ The acknowledged police power of a State extends often to the destruction of property. A nuisance may be abated. Every thing prejudicial to the health or morals of a city may be removed. Merchandize, from a port where a contagious disease prevails, being liable to communicate the disease, may be excluded ; and, in extreme cases, it may be thrown into the sea. This comes in direct conflict with the regulation of commerce, and yet no one doubts the local power. It is a power essential to self-preservation, and exists, necessarily, in every organized community. It is, indeed, the law of nature, and is possessed by man in his individual capacity. He may resist that which does harm him, whether he be assailed by an assassin, or approached by poison. And it is the settled construction of every regulation of commerce, that, undor the sanction of its general laws, no person can introduce into a community malignant diseases, or any thing which contaminates its morals, or endangers its safety. And this is an acknowledged principle applicable to all general regulations. Individuals, in the enjoy. ment of their own rights, must be careful not to injure the rights of others.
" From the explosive nature of gunpowder, a city may exclude it. Now this is an article of commerce, and is not known to carry infectious disease; yet, to guard against a contingent injury, a city may prohibit its introduction. These exceptions are
always implied in commercial regulations, where the General Government is admitted to have the exclusive power. They are not regulations of commeree, but acts of selfpreservation. And although they affect commerce to some extent, yet such effect is the result of the exercise of an undoubted power in the State.
“ In all matters of government, and especially of police, a wide discretion is necessary. It is not susceptible of an exact limitation, but must be exercised under the changing exigencies of society. In the progress of population, of wealth, and of civilization, new and vicious indulgences spring up, which require restraints that can only be imposed by the legislative power. When this power shall be exerted, how far it shall be carried and where it shall cease, must mainly depend upon the evil to be remedied. Under the pretence of a police regulation, a State cannot counteraet the commercial power of Congress. And yet, as has been shown, to guard the health, morals, and safety of the community, the laws of a State may prohibit an importer from landing his goods, and may sometimes anthorize their destruction. But this exception to the operation of the general commercial law is limited to the existing exigency.
"The police power of a State and the foreign commercial power of Congress must stand together. Neither of them can be so exercised as materially to affect the other. The sources and objects of these powers are exclusive, distinct, and independent, and are essential to both governments."
And Justice Grier, in the same case, said :
It has been frequently decided by this court, “ that the powers which relate to merely municipal regulations, or what may more properly be called internal police, are not surrendered by the States, or restrained by the Constitution of the United States; and that consequently, in relation to these, the authority of a State is complete, unqualified, and conclusive.” Without attempting to define what are the peculiar subjects or limits of
it may safely be affirmed that every law for the restraint and punishment of crime, for the preservation of the public peace, health, and morals, must come within this category.
As subjects of legislation, they are from their very nature of primary importance; they lie at the foundation of social existence; they are for the protection of life and liberty, and necessarily compel all laws on subjects of secondary importance, which relate only to property, convenience, or luxury, to recede, when they come in conffict or collision. 1 « Salus populi suprema lex.”
If the right to control these subjects be "complete, unqualified and exclusive" in the State Legislatures, no regulations of secondary importance can supersede or restrain their operations, on any ground of prerogative or supremacy. The exigencies of the sucial compact require that such laws be executed before and above all others.' It is for this reason that Quarantine laws, which protect the public health, compel mere commercial regulations to submit to their control. They restrain the liberty of the passengers, they operate on the ship which is the instrument of commerce, and its officers and crew, the agents of navigation. They seize the infected cargo, and cast it overboard. The soldier and the sailor, though in the service of the government, are arrested, imprisoned, and punished for their offences against society. Paupers and convicts are refused admission into the country. All these things are done, not from any power which the States assume to regulate commerce or to intefere with the regulations of Congress, but because police laws for the preservation of health, prevention of crime, and protection of the public welfare, must of necessity have full and free operation, according to the exigency which requires their interference.
The immediate question at issue in the cases of Smith v. Turner and Norris v. City of Boston was not, however, made dependent on the construction of the ninth section of the first article of the Constitution, but was, whether the enactment of certain laws of New York and Massachusetts, imposing a tax upon passengers, either foreigners or citizens coming into the ports in those States, was in conflict with the power of Congress over commerce. The case of Smith v. Turner arose under the health laws of New York. By the seventh section of an act of that State, relating to the Marine Hospital, it was provided “that the health commissioner shall demand, and be entitled to receive,” &c., “from the master of every vessel from a foreign port, for himself and each cabin passenger,' &c., "one dollar," and "the master of each coasting vessel from the States of New Jersey, Connecticut, and Rhode Island, shall not pay for more than one voyage in each month," &c. The eighth section provided that the moneys so received should be denominated “ hospital moneys ;" and the ninth gave "each master paying hospital moneys, a right to demand and recover from each person the sum paid on his account. The tenth provided for a forfeiture of $100 in case of the master's failure to pay within a certain time; and the eleventh required the commissioners of health to account to the Comptroller of the State, and, in case the sum received in any one year exceeded the expenses of their trust, they were to pay the surplus to the Treasurer of the Society for the Reformation of Juvenile Delinquents, &c. The plaintiff in error was master of the British ship Henry Bliss, and landed at New York in June, 1841, two hundred and ninety steerage passengers, and, refusing to pay the required tax, the defendant in error brought an action against him therefor, whereupon he filed a demurrer, on the ground that the act was a regulation of commerce, and in conflict with the Constitution of the United States. The Supreme Court of the State overruled the demarrer, and the Court of Errors affirmed the judgment, and therenpon it was taken before the Supreme Court of the United States. Jastice McLean, in delivering the opinion of the court, concurred in hy Justices Catron, Grier, McKinley, and Wayne, and dissented to by Chief Justice Taney, and Justices Nelson, Daniel and Woodbury, considered the case under two general heads: "1. Is the power of Congress to regulate commerce an exclusive power ?" and "2. Is the statute of New York a regulation of commerce ?" And both these propositions were ruled in the affirmative by the court. The case of Norris v. the City of Boston brought before the court the judgment of the Supreme Court of Massachusetts, which was in favor of the constitutionality of "an act relating to alien passengers,” passed 20th April, 1837, by the Legislature of that State, and which contained provisions which, according to the view taken in the case of Smith v. Turner, were considered regulations of commerce, and not within the constitutional power of the State to enact. These provisions were as follows:
“ Sec. 1. When any vessel shall arrive at any port or harbor within this State, from any port or place without the same, with alien passengers on board, the officer or officers whom the mayor and aldermen of the city, or the selectmen of the town where it is proposed to land such passengers, are hereby authorized and required to appoint, shall go on board said vessels and examine into the condition of said passengers.
“ Sec. 2. If, on such examination, there shall be found among said passengers any lunatic, idiot, maimed, aged or infirmed person, incompetent, in the opinion of the officer so examining, to maintain themselves, or who have been paupers in any country, no such alien passenger shall be permitted to land, until the master, owner, consignee or agent of such vessel, shall have given to such city or town a bond in the sum of one thousand dollars, with a good and sufficient security, that no such lunatic, or indigent passenger shall become a city, town, or State charge, within ten years from the date of the said bond.
“ Sec. 3. No alien passenger, other than those spoken of in the preceding section, shall be permitted to land until the master, owner, consignee, or agent of such vessel, shall pay to the regularly appointed boarding officer the sum of two dollars for each passenger so landing ; and the money so collected shall be paid into the treasury of the city or town, to be appropriated as the city or town may direct for the support of foreign paupers."
All the Judges delivered written opinions. The introductory part of that of Judge Wayne gives a clear and succinct view of the decision of the majority of the court in these cases, which is as follows:
I agree with Mr. Justice McLean, Mr. Justice Catron, Mr. Justice McKinley, and Mr. Justice Grier, that so much of the laws of Massachusetts and New York as are in question in the cases, are unconstitutional and void. I would not say so, if I had any --the least doubt of it; for I think it obligatory upon this court, when there is a doubt of the unconstitutionality of a law, that its judgment should be in favor of its validity. I have formed my conclusions in these cases, with this admission constantly in mind.
Before stating, however, what they aro, it will be well for me to say, that the five judges who concur in giving the judgment in these cases, do not differ from each other on the grounds upon which our judgment has been formed, except in one particular, in no way at variance with our united conclusion; and that is, that a majority of us de not think it necessary in these cases to re-affirm, with our brother McLean, what this court has long decided that the constitutional power of Congress to regulate merce with foreign nations, and among the several States, and with the Indian tribes," is exclusively vested in Congress ; and that no part of it can be exercised by a State.
I believe it to be so, just as it is expressed in the preceding sentence, and in the sense in which those words were used by this court in the case of Gibbons v. Ogden, (9 Wheaton.)
All that was decided in that case remains unchanged by any subsequent opinion or judgment of this court. Some of the judges of it have, in several cases, expressed opinions that the power to regulate commerce is not exclusively vested in Congress. But they are individual opinions, without judicial authority to overrule the contrary conclusion, as it was given by this court in Gibbons v. Ogden.
In my view, after a very careful perusal of those opinions, of those also of Mr. Justice McKinley and Mr. Justice Grier, I think the court means to decide
1. That the acts of New York and Massachusetts imposing a tax ' upon passengers,
cither foreigners or citizens, coming into the ports in these States, either in foreign vessels or vessels of the United States, from foreign nations or from ports in the United States, are unconstitutional and void ; being in their nature regulations of commerce, contrary to the grant in the Constitution to Congress, to regulate commerce with foreign nations and among the several States.
2. That the States of this Union cannot constitutionally tax the commerce of United States, for the purpose of paying any expenses incident to the execution of their police laws; and that the commerce of the United States includes an intercourse of persons, as well as the importation of merchandise.
3. That the acts of Massachusetts and New York, in question in these cases, conflict with treaty stipulations existing between the United States and Great Britain, permitting the inhabitants of the two countries “ freely and securely to come with their ships and cargoes to all such places, ports, and rivers, in the territories of each country to which other foreigners are permitted to come, to enter into the same, and to remain and reside in any parts of said territories, respectively ; also, to hire and occupy houses and warehouses for the purpose of their commerce ; and generally the merchants and traders of each nation, respectively, shall enjoy the most complete protection and secnrity for their commerce, but subject always to the laws and statutes of the two countries, respectively;" and that said laws are therefore unconstitutional and void.
4. That the Congress of the United States having by sundry acts, passed at different times, admitted foreigners into the United States with their personal luggage and tools of trade, free from all duty or imposts, that the acts of Massachusetts and New York imposing any tax upon foreigners or immigrants for any purpose whatever, whilst the vessel may have arrived within the territorial limits of either of the States of Massachusetts or New York, and before the passengers have here landed, are in violation of said acts of Congress, and therefore unconstitutional and void.
5. That the acts of Massachusetts and New York, in so far as they impose any obligation upon the owners or consignees of vessels, or upon the captains of vessels or freighters of the same, arriving in the ports of the United States within the said States, to pay any tax or duty of any kind whatever, or to be in any way responsible for the same, for passengers arriving in the United States, or coming from a port in the United States, are unconstitutional and void; being contrary to the constitutional grant to Congress to regulate commerce with foreign nations and among the several States, and to legislation of Congress under the said grant or power, by which the United States have been laid off into collection districts, with ports of entry established within the same, and prescribing the commercial regulations under which vessels, their cargoes, and passengers, are to be admitted into the ports of the United States, as well from abroad as from other ports of the United States. That the act of New York now in question, in so far as it imposes a tax upon passengers arriving in vessels from other ports in the United States, is properly in this case before this court for construction, and that the said tax is unconstitutional and void. That the ninth section of the first article of the Constitution 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.
6. That the sixth clause of the ninth section of the first article of the Constitution, prohibiting any “preference from being given by any regulation of commerce or revenue to the ports of one State over those of another State," and that “vessels bound to or from one State shall not be obliged to enter, clear, or pay duties in another," is a limitation upon the power of Congress to regulate commerce, for the purpose of producing entire