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nevertheless, to pass by so portentous a claim without a monitory notice of the fatal tendency with which it would be pregnant." (Madison's Report.) The assertion of a general necessity for permission to the States from the General Government, either to expel from their confines those who are mischievous or dangerous, or to admit to hospitality and settlement whomsoever they may deem it advantageous to receive, carries with it either a denial to the former, as perfect original sovereignties, of the right of self-preservation, or presumes a concession to the latter, the creature of the States, wholly incompatible with its exercise.

This authority over alien friends belongs not, then, to the General Government, by any express delegation of power, nor by necessary or improper implication from express grants. The claim to it is cssentially a revival of what public sentiment so generally and decisively condemned as a usurpation in the alien law of 1798; and however this revival may at this time be freed from former imputations of foreign antipathies or partialities, it must, nevertheless, be inseparable from-nay, it must be the inevitable cause of far greater evils-jealousy, ill-feeling, and dangerous conflict, between the members of this confederacy and their common agent.

The weight of authority seems to be, from a review of the opinions given, that the section of the Constitution in question is an exception to the power of Congress to regulate commerce, so that if it had not been introduced, the power to prohibit the importation would have resulted from the general grant to regulate commerce. 15 Peters' Rep., 514. For it is a rule of interpretation acknowledged by all, that the exception of a particular thing from general words proves that, in the opinion of the law-giver, the thing excepted would be within the general clause, had the exception not been made, and there seems to be no reason why this general rule should not be as applicable to the Constitution as to other instruments. 12 Wheaton Rep., 440. 12 Wheaton Rep., 440. The section, according to this construction, not only considers the right of controlling personal ingress or migration, as implied in the powers previously vested in Congress over commerce, but acknowledges it as a subject of revenue. Wheaton, 450. Congress having the exclusive power to regulate commerce, and the latter, under the interpretation of the ninth section, including an intercourse of persons as well as the importation of merchandize, the conclusion seems to be irresistible that Congress has the sole power over migration of foreigners as well as importation of goods, and that the States cannot tax immigrants for the purpose of paying expenses incident to the execution of their police laws. But the States have reserved to them the internal police power, which, in common parlance, often relates to something with public morals, and in that limited. view would embrace the subject of pauperism, (16 ̊ Peters, 625,) whilst in law the term is much broader, and includes all legislation for the internal policy of a State. 4 Black. Comm., ch. 13

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CHAPTER XII.

INTERNAL POLICE POWER OF THE STATES.

THOUGH a great difference of opinion is manifested in the written opinions of the Judges of the Supreme Court, as to the constitutionality of the passenger laws of New York and Massachusetts, which imposed a tax, and which were under consideration in the cases of Smith v. Turner and Norris v. Boston, no such difference existed among them, as to the power relating to internal police being reserved to the States, to be exercised by them even to the entire exclusion of certain classes of persons. This principle was fully established in the case of The City of New York v. Milne, 11 Peters' Rep., 102, which came before the United States Supreme Court, on a certificate of division in opinion of the Judges of the Circuit Court of the United States for the Southern District of New York. The facts of the case were these: By one of the provisions of an act, passed by the New York Legislature, in 1824, the master of every vessel arriving in New York was required, under certain penalties, within twenty-four hours after his arrival, to make report of the names, ages, and last legal settlement of every person on board of his vessel, &c. New York city brought an action of debt under this law against the master of the ship Emily, for the recovery of certain penalties imposed by the act. The defendant demurred and alleged that the act assumed to regulate trade and commerce, and was therefore unconstitutional. The Supreme Court decided otherwise, however, and pronounced the act to be constitutional. In delivering the opinion of the court, Justice Barbour said:

The power of New York to pass this law having undeniably existed at the formation of the Constitution, the simple inquiry is, whether by that instrument it was taken from the States, and granted to Congress; for if it were not, it yet remains with them.

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Now, we hold that both the end and the means here used, are within the competency of the States, since a portion of their powers were surrendered to the Federal GovernLet us see what powers are left with the States. The Federalist, in the 45th number, speaking of this subject, says: the powers reserved to the several States will extend to all the objects, which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people; and the internal order, improvement, and prosperity of the State. And this court, in the case of Gibbons v. Ogden, 9 Wheat., 203, which will hereafter be more particularly noticed, in speaking of the inspection laws of the States, say they form a portion of that immense mass of legislation which embraces every thing 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 of this mass.

Now, if the act in question be tried by reference to the delineation of power laid down in the preceding quotations, it seems to us that we are necessarily brought to the conclusion, that it falls within its limits. There is no aspect in which it can be viewed, in which it transcends them. If we look at the place of its operation, we find it to be within the territory, and, therefore, within the jurisdiction of New York. If we look at the person on whom it operates, he is found within the same territory and jurisdiction. If we look at the persons for whose benefit it was passed, they are the people of New York, for whose protection and welfare the Legislature of that State are authorized and in duty bound to provide.

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If we turn our attention to the purpose to be attained, it is to secure that very protection, and to provide for that very welfare. If we examine the means by which these ends are proposed to be accomplished, they bear a just, natural, and appropriate relation to those ends.

We choose rather to plant ourselves on what we consider impregnable positions. They are these: That a State has the same undeniable and unlimited jurisdiction over all persons and things, within its territorial limits, as any foreign nation, where that jurisdiction is not surrendered or restrained by the Constitution of the United States; that, by virtue of this, it is not only the right, but the bounden and solemn duty of a State, to advance the safety, happiness and prosperity of its people, and to provide for its general welfare, by any and every act of legislation which it may deem to be conducive to these ends; where the power over the particular subject, or the manner of its exercise is not surrendered or restrained, in the manner just stated; that all those powers which relate to merely municipal legislation, or what may, perhaps, more properly be called internal police, are not thus surrendered or restrained; and that, consequently, in relation to these the authority of a State is complete, unqualified, and exclusive.

We are aware, that it is at all times difficult to define any subject with proper precision and accuracy; if this be so in general, it is emphatically so in relation to a subject so diversified and multifarious as the one which we are now considering.`

If we were to attempt it, we should say, that every law came within this description which concerned the welfare of the whole people of a State, or any individual within it; whether it related to their rights or their duties; whether it respected them as men, or as citizens of the State, or of any individual within it; and whose operation was within the territorial limits of the State, and upon the persons and things within its jurisdiction.

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Now, in relation to the section in the act immediately before us, that is obviously passed with a view to prevent her citizens from being oppressed by the support of multitudes of poor persons, who come from foreign countries without possessing the means of supporting themselves. There can be no mode in which the power to regulate internal police could be more appropriately exercised. New York, from her particular situation, is, perhaps, more than any other city in the Union, exposed to the evil of thousands of foreign immigrants arriving there, and the consequent danger of her citizens being subjected to a heavy charge in the maintenance of those who are poor. It is the duty of the State to protect its citizens from this evil; they have endeavored to do so, by passing, amongst other things, the section of the law in question. We should, upon principle, say that it had a right to do so.

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We think it as competent and as necessary for a State to provide precautionary measures against the moral pestilence of paupers, vagabonds, and possibly convicts, as it is to guard against the physical pestilence which may arise from unsound and infectious articles imported, or from a ship, the crew of which may be laboring under an infectious disease.

In the case of Groves et al. v. Slaughter, 15 Peters' Rep., 509, Chief Justice. Taney, in noticing the question of constitutional law that bad been brought into discussion, that is to say, whether the grant of power to the General Government, to regulate commerce, does not carry with it an implied prohibition to the States to make any regulations upon the subject, even although they should be altogether consistent with those made by Congress, raised the query, however, whether such State legislation would not be valid until Congress should otherwise direct. He said:

"It is admitted on all hands, that if a State makes any regulations of commerce inconsistent with those made by Congress, or in any degree interfering with them, the regu lations of the State must yield to those of the General Government. No one, I believe, doubts the controlling power of Congress in this respect; nor their right to abrogate and annul any and every regulation of commerce made by a State. But the question upon which different opinions have been entertained, is this: Would a regulation of commerce, by a State, be valid until Congress should otherwise direct; provided such regulation was consistent with the regulations of Congress, and did not in any manner conflict with them? No case has yet arisen which made it necessary, in the judgment of the court, to decide the question. It was treated as an open one, in the case of The City of New York v. Milne, 11 Peters, 102, decided at January term, 1837, as will appear by the opinions then delivered; and since that time the point has never, in any form, come before the court. Nor am I aware that there is any reason for supposing that such a case is likely to arise. For the States have very little temptation to make a regulation of commerce, when they know it may be immediately annulled by an act of Congress, even if it does not at the time it is made by the State conflict with any law of the General Government.

But Justice Baldwin, in the same case, thus emphatically recognized the exclusive power of Congress over commerce, yet at the same time conceded the internal police power to belong exclusively to the States:

"That the power of Congress to regulate commerce among the several States,' is exclusive of any interference by the States, has been, in my opinion, conclusively settled by the solemn opinions of this court, in Gibbons v. Ogden, 9 Wheat., 186–222, and in Brown v. Maryland, 12 Wheat., 438-446. If these decisions are not taken as the established construction of this clause of the Constitution, I know of none which are not yet open to doubt; nor can there be any adjudications of this court, which must be considered as authoritative upon any question, if these are not to be so on this. Cases may, indeed, arise, wherein there may be found the difficulty in discriminating between regulations of commerce among the several States,' and the regulations of the internal police of a State,' but the subject-matter of such regulations, of either description, will lead to the true line which separates them, when they are examined with a disposition to avoid a collision between the powers granted to the Federal Government, by the people of the seve

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ral States, and those which they have reserved exclusively to themselves. • Commerce among the States,' as defined by this court, is trade,' traffic,'intercourse,' and dealing in articles of commerce between States, by its citizens or others, and carried on in more than one State. Police relates only to the internal concerns of one State, and commerce, within it, is purely a matter of internal regulation, when confined to those articles which have become so distributed as to form items in the common mass of property. It follows, that any regulation which affects the commercial intercourse between any two or more States, referring solely thereto, is within the powers granted exclusively to Congress; and that those regulations which affect only the commerce carried on within one State, or which refer only to subjects of internal police, are within the powers reserved. The opinion of this court, in Milne v. New York, 11 Peters, 130, &c., draws a true line between the two classes of regulations."

So in the case of Prigg v. The Commonwealth of Pennsylvania, 16 Peters' Rep., 625, Justice Story, in delivering the opinion of the Court, held the following language in relation to the police power belonging to the States:

"To guard, however, against any possible misconstruction of our views, it is proper to state, that we are by no means to be understood in any manner whatsoever to doubt or to interfere with the police power belonging to the States in virtue of their general sovereignty; that police power extends over all subjects within the territorial limits of the States, and has never been conceded to the United States. It is wholly distinguishable from the right and duty secured by the provision now under consideration; which is exclusively derived from and secured by the Constitution of the United States, and owes the whole efficacy thereto. We entertain no doubt whatsoever, that the States, in virtue of their general police power, possess full jurisdiction to arrest and restrain runaway slaves, and remove them from their borders, and otherwise to secure themselves against their depredations and evil example, as they certainly may do in cases of idlers, vagabonds, and paupers. The rights of the owners of fugitive slaves are in no just sense interfered with, or regulated by such a course; and, in many cases, the operations of this police power, although designed generally for other purposes, for the protection, safety, and peace of the States, may essentially promote and aid the interests of the owners. But such regulations can never be permitted to interfere with or to obstruct the just rights of the owner to reclaim his slave, derived from the Constitution of the United States, or with the remedies prescribed by Congress to aid and enforce the same."

In the License cases, (5 Howard, 578,) Chief Justice Taney still insists that there is no absolute prohibition to the exercise of the power over commerce by the States. He says:

“The question brought up for decision is, whether a State is prohibited by the Constitution of the United States from making any regulations of foreign commerce, or of commerce with another State, although such regulation is confined to its own, territory, and made for its own convenience or interest, and does not come in conflict with any law of Congress. In other words, whether the grant of power to Congress is of itself a prohibition to the States, and renders all State laws upon the subject null and void.

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"It is well known that upon this subject a difference of opinion has existed, and still exists, among the members of this court. But with every respect for the opinion of my

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