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commercial equality within the United States, and also a prohibition upon the States to destroy such equality by any legislation prescribing a condition upon which vessels bound from one State shall enter the port of another State.
7. That the tax imposed upon passengers by the acts in Massachusetts and New York is unconstitutional and void, because each of them conflicts with so much of the first clause of the eighth section of the first article of the Constitution which enjoins that all duties and imposts are as real and obligatory upon the States, in the absence of all legislaton by Congress, as if the uniformity had been made by the legislation of Congress; and that such constitutional uniformity is interfered with and destroyed by any State imposing any tax upon the intercourse of persons from State to State, or from foreign countries to the United States.
8. That the power of Congress to regulate commerce with foreign nations and among the several States includes navigation upon the high seas, and in the bays, harbors, lakes, and navigable waters within the United States; and that any tax by a State in any way affecting the right of navigation, or subjecting the exercise of the right to a , condition, is contrary to the aforesaid grant.
9. That the States of this Union may, in the exercise of their police powers, pass Quarantine and health laws, interdicting vessels coming from foreign ports, or ports within the United States, from landing passengers and goods; prescribe the places and time for vessels to quarantine, and impose penalties upon persons for violating the same; and that such laws, though affecting commerce in its transit, are not regulations of commerce, prescribing terms upon which merchandise and persons shall be admitted into the ports to which they are bound, and that the States may, in the exercise of such police power, without any violation of the power in Congress to regulate commerce, exact from the owner or consignee of a quarantined vessel, and from the passengers on board of her, such fees as will pay the State the cost of their detention and of the purification of the vessel and the apparel of the persons on board.
Justice McLean said, in the same case :
The police power of the State cannot draw within its jurisdiction objects which lie beyond it. It meets the commercial power of the Union in dealing with subjects under the protection of that power, yet it can only be exerted under peculiar emergencies and to a limited extent. In guarding the safety, the health, and the morals of its citizens, a State is restricted to appropriate and constitutional means. If extraordinary expense be incurred, an equitable claim to an indemnity can give no power to a State to tax objects not subject to its jurisdiction.
The Attorney General of New York admitted that, if the commercial power were exclusively vested in Congress, no part of it can be exercised by a State. The soundness of this conclusion is not only sustainable by the decisions of this court, but by every approved rule of construction. That the power is exclusive, seems to be as fully established as any other power under the Constitution which has been controverted.
A tax or duty upon tonnage, merchandise, or passengers, is a regulation of commerce, and cannot be laid by a State, except under the sanction of Congress, and for the purposes specified in the Constitution. On the subject of foreign commerce, including the transportation of passengers, Congress have adopted such regulations as they deemed proper, taking in view our relations with other countries. And this covers the whole ground. The act of New York which imposes a tax on passengers of a ship from a foreign port, in the manner provided, is a regulation of foreign commerce, which is exclusively vested in Congress; and the act is therefore void.
Justice Grier held the following language :
It must be borne in mind (what has sometimes been forgotten) that the controversy in this case is not with regard to the right, claimed by the State of Massachusetts in the second section of this act, to repel from her shores lunatics, idiots and criminals, or paupers, which any foreign country, or even one of her sister States, might endeavor to thrust upon her; nor the right of any State, whose domestic security might be endangered by the admission of free negroes, to exclude them from her borders. This right of the States had its foundation in the sacred law of self-defence, which no power granted to Congress can restrain or annul. It is admitted by all that those powers which relate to merely municipal legislation, or what may be more properly called internal police, are not surrendered or restrained; and cautionary measures against the moral pestilence of paupers, vagabonds, and convicts, as it is to gaurd against the physical pestilence which may arise from unsound and infectious articles imported. The case of New York v. Milne asserts this doctrine, and no more. The law under consideration in that case did not interfere with passengers, as such, either directly or indirectly, who were not paupers. It
put forth no claim to tax all persons for leave to land and pass through the State to other States, or a right to regulate the intercourse of foreign nations with the United States, or to control the policy of the General Government with regard to immigrants.
But what is the claim set up in the third section of the act under consideration, with which alone we have now to deal ?
It is not the exaction of a fee or toll from passengers for some personal service rendered to them, nor from the master of the vessel for some inspection, or other service rendered either to the vessel or its cargn. It is not a fee or tax for a license to foreigners to become denizens or citizens of the Commonwealth of Massachusetts ; for they have sought no such privilege, and, so far as is yet known, may have been on their way to some other place.
It is not an exercise of the police power with regard to paupers, idiots, or convicts. The second section effectually guards against injury from them. It is only after the passenger has been found on inspection not to be within the description whose crimes or poverty require exclusion, that the master of the vessel is taxed for leave to land him. Had this act commenced with the third section, might it not have been truly entitled “ An act to raise revenue off vessels engaged in the transportation of passengers ?” Its true character nnot be changed by its collocation ; nor can it be termed a police regulation, because it is in the same act which contains police regulations.
In its letter and the spirit it is an exaction from the master, owner, or consignee of a vessel engaged in the transportation of passengers, graduated on the freight or passagemoney earned by the vessel. It is, in fact, a duty on the vessel; not measured by her tonnage, it is true, but producing a like result, by merely changing the ratio. It is a taxation of the master as representative of the vessel and her cargo. It has been argued that this is not a tax on the master or the vessel, because in effect it is paid by the passenger having enhanced the price of his passage. Let us test the value of this argument by its application to other cases that naturally suggest themselves. If this act bad, in direct terms, compelled the master to pay a tax or duty levied or graduated on the ratio of the tonnage of his vessel, whose freight was earned by the transportation of passengers, it might have been said, with equal truth, that the duty was paid by the passenger, and not by the vessel. And so, if it had laid an impost on the goods of the passenger imported by the vessel, it might have been said, with equal reason, it was only a tax on the passenger at last, as it comes out of his pocket, and graduating it by the amount of his goods, affects only the modus or ratio by which its amount is calculated. In this
way the most stringent enactments may be easily evaded. It is a just and well-settled doctrine established by this court, “ that a State cannot do that indirectly which she is forbidden by the Constitution to do directly.” If she cannot levy a duty or tax from the master or owner of the vessel engaged in commerce, graduated on the tonnage or admeasurement of the vessel, she cannot effect the same purpose by merely changing the ratio, and graduating it on the number of masts, or of mariners, the size and power of the steam-engine, or the number of passengers which she carries. We have to deal with things, and we cannot change them by changing their names. Can a State levy a duty on vessels engaged in commerce and not owned by her citizens, by changing its name from a " duty on toppage” to a tax on the master, or an impost upon imports, by calling it a charge on the owner or supercargo, and justify this evasion of a great prin. ciple by producing a dictionary or a dictum to prove that a ship-captain is not a vessel, nor a supercargo an import?
COLONIAL NATURALIZATION LAWS.
BEFORE the adoption of the Constitution of the United States, the power of naturalization resided in the several States. In Pennsylvania, the British statute of 13th Geo. II., ch. 7, furnished the general rule for naturalizing such foreign Protestants, and others therein mentioned, as were settled or should settle in the then colonies of America.
An act was passed, however, by the Legislature of the colony, on the 3d February, 1742, " for naturalizing such foreign Protestants as are settled or shall settle within this province, who not being of the people called Quakers, do conscientiously refuse the taking of an oath.” This act provided as follows:
“ All persons being Protestants, born out of the legience of our present sovereign, King George the Second, his heirs and successors, who shall conscientiously refuse an oath, and have inhabited and resided, or shall inhabit or reside, for the space of seven years or more within this province, and shall not have been absent out of the same, or some other of the colonies, in the said act of Parliament mentioned, for a longer space than two months at any one time, during the said seven years, and shall make and subscribe the declaration of fidelity, and the profession of his Christian belief, and take and affirm the effect of the adjuration oath, before the chief judge, or other judge of the Supreme Court of this province, in such sort, manner and form, as in and by the said act of Parliament is directed to be done and performed by the people called Quakers, shall be deemed, adjudged and taken to be the king's natural born subjects of this province, to all intents.” See Dallas' ed., vol. i., Penn. Laws.
After the Declaration of Independence, this law was superseded. The State Constitution, adopted in 1776, contained the following provision :
Every foreigner of good character, who comes to settle in this State, having first taken an oath or affirmation of allegiance to the same, may purchase, or by other just means acquire, hold, and transfer land, or other real estate, and after one year's residence, shall be deemed a free denizen thereof, and entitled to all the rights of a natural born subject of this State, except that he shall not be capable of being elected a representative until after two years' residence.”
The forty-second section of the Constitution of the State of New York, adopted in 1777, authorized the Legislature to naturalize persons; but it expressly thus qualified this power of the Legislature in the following manner:
“ Provided all such of the persons so to be by them naturalized, as being born in parts beyond sea, and out of the United States of America, shall come to settle in, and become subjects of this state, shall take an oath of allegiance to this State, and abjure and renounce all allegiance and subjection to all and every foreign king, prince, potentate, and State, in all matters, ecclesiastical as well as civil.”
This was intended, and so it operated, says Chancellor Kent, in his Commentaries, vol. ii., 73, to exclude from the benefits of naturalization, Roman Catholics who acknowledged the spiritual supremacy of the pope, and it was the result of former fears and prejudices (still alive and active at the commencement of our revolution) respecting the religion of the Romish church, which European history had taught us to believe was incompatible with perfect national independence, or freedom and good order of civil society.
In Virginia, early in the session of May, 1779, Mr. Jefferson prepared and obtained leave to bring in a bill, declaring who should be deemed citizens, asserting the natural right of expatriation, and prescribing the mode of exercising it. This, when he withdrew from the House on the first of June following, he left in the hands of George Mason, and it was passed on the 26th of that month. See Jefferson's Works, vol. i., p. 80, Autobiography. The following were the provisions of the act thus passed :
“ An Act declaring who shall be deemed citizens of this Commonwealth. Be it enacted by the General Assembly, That all white persons born within the territory of the Commonwealth, and all who have resided therein two years next before the passing of this act; and all who shall hereafter migrate into the same, other than alien enemies, and shall, before any Court of Record, give satisfactory proof, by their oath or affirmation, that they intend to reside therein ; and moreover, shall give assurance of fidelity to the Com. monwealth ; and all infants, whenever born, whose father, if living, or otherwise, whose mother was a citizen at the time of their birth, or who migrate hither, their father, if living, or otherwise, their mother becoming a citizen, or who migrate hither without father or mother, shall be deemed citizens of this Commonwealth until they relinquish that character, in manner as hereinafter expressed ; and all others not being citizens of any of the United States of America, shall be deemed aliens. The clerk of the court
shall enter such Oath of record, and give the person taking the same a certificate thereof for which he shall receive the fee of one dollar."
The State of Maryland, in July, 1779, passed a law on the subject, as follows:
Be it enacted by the General Assembly of Maryland, That EVERY PERSON who shall hereafter come into this State, from any Nation, Kingdom, or State, and shall repeat and subscribe a declaration of his belief in the Christian religion, and take, repeat and subscribe the following oath, to wit: “I do swear that I will hereafter become a subject of the State of Maryland, and will be faithful, and bear true allegiance to said State, and that I do not hold myself bound to yield allegiance or obedience to any King or Prince, or any State or government,” shall thereupon and thereafter be adjudged, deemed and taken to be a natural born subject of this State.
In the act of the Legislature of Georgia, passed on the 7th February, 1785, it is provided that an alien may become a citizen, “who hath resided at least twelve months in the same, and, after the expiration thereof, doth obtain from the Grand Jury of the county where he resides, a certificate, purporting that he hath demeaned himself as an honest man, and friend to the government of the State," and upon his having said certi. ficate duly recorded, and taking the oath of allegiance. The third section of the act is as follows :
Provided always, and be it enacted by the authority aforesaid, That no such person (alien born, thus made a citizen) shall be a member of the General Assembly, or of the Executive Council, or hold any office of trust or profit, or vote for members of the Geperal Assembly, for the term of seven years, and until the Legislature shall, by special act for that purpose, enable such person so to do. And provided also, that all such alicns, or persons aforesaid, shall be subject and liable to pay such alien duties as have been heretofore, or may hereafter be imposed by the Legislature. Sce Watkins Digest, 302-3.
By the fortieth article of the Constitution of North Carolina, adopted in 1776, it was provided : “That every foreigner who comes to settle in this State, having first taken an oath of allegiance to the same, may purchase, or, by other jast means, acquire, hold, and transfer land, or other real estate ; and after one year's residence, shall be deemed a free citizen."
In Massachusetts, on the strength of an act passed in 1777, persons born abroad, and coming into that State after 1776, and before 1783, and remaining there voluntarily, were adjudged to be citizens. 2 Pick., 394.
The Supreme Court in Connecticut adopted the same rule without the aid of any statute, and it was held, that a British soldier, who came over with the British army in 1775, and deserted, and came and settled in Connecticut in 1778, and remained there afterwards, became, of course, a citizen, and ceased to be an alien. 5 Day's Rep., 169