Passenger Cases.-Argument of Mr. J. P. Hall. In the case at bar, New York asks nothing but justice at their hands. Granting much, yielding much, to the wealth, glory, and power of the Union,-a Union in which she feels a just pride, and the value of which she never stopped to calculate, she does not feel that it is immodest to ask, (if it be considered asking,) that she may avail herself of her local position to sustain in part the expense to her citizens, and the danger to their health and lives, which attend her exposure and the Union's commerce,-that she may arrest and purify the stream before it enters her veins, that the blood of life to the rest of the Union may not be infection and death to her. NORRIS v. CITY OF BOSTON. Mr. J. Prescott Hall, for the plaintiff in error. The object of the writ of error in this case is to test the constitutionality of an act of the legislature of the State of Massachusetts, passed in the year 1837, entitled, “An act relating to alien passengers." With the general question involved in the cause, this court is entirely familiar. It is a branch of constitutional law which has occupied its attention at intervals during the last thirty years. The controversy with regard to the powers of the several States over commerce and navigation, and their authority to control these and analogous subjects, supposed to be beyond their jurisdiction, began as far back as the year 1819, with the case of McCulloch v. Maryland (4 Wheat., 316), when it was here decided, that the act of Congress establishing a bank of the United States was not only constitutional, but that the States had no warrant for taxing its branches, or power, by *these or other means, to impede their action, or drive them beyond their territorial limits. In strict analogy with this case was that of Weston v. The City of Charleston (2 Pet., 449), in the year 1829, when this court held that a tax imposed by a State on stock issued for loans to the United States was unconstitutional, and could not be collected. *380] The question as to the power of the States over commerce and navigation was directly presented by Gibbons v. Ogden, in the year 1824, when it was held that the State of New York could not grant to any of its citizens an exclusive right to traverse the great bays and navigable waters of that State with vessels propelled by steam, to the exclusion of those Passenger Cases.-Argument of Mr. J. P. Hall. from other States, licensed or enrolled under acts of Congress. These discussions led to another, in the year 1827, when this court decided that the State of Maryland could not compel merchants, engaged in the business of importing and selling foreign goods by the bale or package, to take out licenses for the same, and to pay a sum of money, or tax, for the privilege. (Brown v. State of Maryland, 12 Wheat., 419.) Then followed, after an interval of ten years, the case of The City of New York v. Miln (11 Pet., 102), which is supposed to control the present controversy and recognize the power of a State to regulate, in some degree, the commerce and navigation of the whole country, even on the tide-waters which wash our shores. Nor will such controversies cease, perhaps, until other kindred subjects have been explored and examined; for New York claims now, and exercises, the power of imposing burdens upon the disposition of foreign merchandise in its original condition as imported, when sold in a particular manner, that is, by auction. The recent decisions of this court upon the license laws of New Hampshire, Massachusetts, and Rhode Island may be, also, referred to, as bearing materially upon the reasoning we must employ, in expressing our views upon the subject now under consideration; but as they will undergo a critical examination in the progress of the argument, they are here merely glanced at, in passing. This brief statement of the course of legislation and decision upon these subjects brings us back to the case now before the court. It arises under the act of Massachusetts before referred to, passed in the year 1837, shortly after the case of The City of New York v. Miln had opened the eyes of her legislators to this new source of revenue. This law provides, that, upon the arrival of a vessel in the *waters of Massachusetts with alien passengers on board, an officer of the city or town where such pas[*381 sengers are to be landed shall stop the vessel, and examine into the condition of its passengers. If any lunatics or infirm persons, incompetent to maintain themselves, are found, they cannot be permitted to land till security is given against their becoming chargeable within ten years; and no other alien passenger shall be permitted to land until two dollars are paid for each, to be appropriated for the support of foreign paupers. By another provision of the same law, the State pilots are required to anchor vessels at particular places, suitable for Passenger Cases.-Argument of Mr. J. P. Hall. the examination of such passengers; and all this may be done while the ship is yet, comparatively, at sea, more than a cannon-shot from the shore, and beyond the jurisdiction of Massachusetts. The examination may be made, and the tax is exacted, before the passage-money is earned; before the voyage is completed; while the insurance is running; before the passenger touches the soil of the State; while all is in itinere. The validity of the act is defended upon the ground that it is a poor-law; that it is a police regulation; that the State has a system of pauper laws, of which this is a part; that the money, when collected, is expended in the support of foreign paupers; and that, as the means are appropriate to the end, the law itself may be upheld as valid. The States have the power, beyond doubt, to pass poor laws and make police regulations. But the question is, Can they provide for paupers, foreign or domestic, by a tax upon the commerce or navigation of the United States? Can they levy contributions upon aliens and citizens of other States, on ship-board, for the support of their police regulations and pauper systems? Are they not forbidden the exercise of this power by the Constitution of the United States, which is the paramount law of the land? The means may be appropriate to attain the end, if the State has the power to use them; but have they any such power? And that is the whole question before the court. If the tax were imposed upon merchandise imported from foreign countries, the means to accomplish the object would be as appropriate as any other; and Massachusetts, were she an independent nation, might employ them at her discretion. But when she came into the Union, in 1789, she gave up, in express terms, all control over foreign commerce, although she was more interested in it at that time than any other State. But she never did tax foreign commerce, be it observed, when she had the power to do so, for the support of paupers; *382] *on the contrary, for more than half a century, she maintained her own system by her other means. The tempting bait was first thrown out in the year 1837, by the case of Miln v. New York, and she seized it with avidity. In our view of the law in question, it imposes a tax on the commerce of the country for the benefit of Massachusetts and its treasury. We consider it as a direct invasion of the power of Congress to regulate navigation and trade, and therefore as unconstitutional and void. It is not an inspection law, nor a quarantine or police reg Passenger Cases.-Argument of Mr. J. P. Hall. ulation; and if it were, the States cannot lay taxes on the commerce of the country, or any part of it, to build up and support police or quarantine establishments, although we admit the incidental expenses and ordinary fees of inspection belonging to sanatory regulations may be exacted by the State. But the law in question imposes a duty on imports without the assent of Congress; for there may be importations of men as well as merchandise. The ninth section of the first article of the Constitution of the United States, when speaking of "the migration or importation" "of persons," is not restricted to any particular class of persons. The words are general. They are applicable to all persons, bond or free, and show that the whole power over such importations is confided to Con gress. Nor is the use of the word "importation," when connected with "persons," peculiar to the Constitution. An act passed by Congress in 1793 is entitled, "An act to prevent the importation of certain persons into certain States where, by the laws thereof, their admission is prohibited." And Judge Marshall held, in the case of the Brig Wilson (1 Brock., 437), that the prohibition of the law comprehended freemen as well as slaves. Various English statutes, applicable to the British Isles, where slavery does not exist, have been passed to regulate or impede or prohibit the importation of persons, free in their own countries, and who would be so in England. (Stat. 1 and 2 P. & M., c. 4; 5 Eliz., c. 20; Jacob's Law Dict., Art. Egyptians.) And it may be remarked here, that the very act of Congress before referred to proves that the whole power of regulating or prohibiting the importation of persons is vested exclusively in the general government. It was passed upon a petition from North Carolina, setting forth that the French had set free their slaves in Guadaloupe, and the aid of Congress was invoked to protect the institutions of the South from the dangerous contact of free persons of color. The State felt its want of power over the subject. She knew it was vested in Congress alone, and to Congress she turned for relief. That body immediately prohibited the "impor[*383 tation" of "negroes, mulattoes, and persons of color," free as well as slaves, into any State which by law had prohibited or should prohibit the importation of any such person or perAnd this act sanctioned to this day the legislation of the Southern States, to a great extent, upon this very subject. sons. The act of the State of Massachusetts now under examina Passenger Cases.-Argument of Mr. J. P. Hall. tion might also be regarded, were it necessary, as imposing a duty on tonnage; being a tax on passengers by the poll. The number of passengers to be taken on board, or imported, in ships of the United States, is limited by law to a fixed relation, or ratio, with the tonnage of the vessel; and as only two passengers are allowed for every five tons, a tax of two dollars on each person is a tax on the vessel of eighty cents a ton. The question before the court is a question as to power, and of power alone. It is a question as to the power on the part of a State to tax the commerce of the Union, to raise a revenue for her own uses. Give Massachusetts the authority to collect money from passengers for the support of paupers, and see how quickly she will extend the system. If it is advisable to support emigrants when in a state of destitution, it is also desirable to educate their children, so that they may not become a burden upon the Commonwealth at a future day. The expense of free schools is far beyond that of pauper asylums; and if Massachusetts has the power to raise revenue by these means for one purpose, so may she for the other. It is true Chief Justice Shaw, in this very case of Norris v. The City of Boston, now before the court, restricts the power of the State to the object for which the tax is laid. He supposes that the States may impose small burdens of this kind, but are prohibited from their extension. He says (4 Metc. (Mass.), 297),-"If, under the form of pilotage, a large sum of money should be demanded of any inward-bound vessel, the effect of which would be to raise a revenue from foreign commerce, the pretence of its being pilotage would not make it legal. And this suggestion answers an argument much pressed, that if the State could demand two dollars in respect to each passenger, it could demand two hundred, or two thousand, and so raise a large revenue for any and all purposes. We think it is plain, that, if any such large sum were exacted of passengers, it would indicate the real purpose and design of the law to be to raise revenue, and not in good faith to carry into effect a useful and beneficent poor-law,useful and beneficent to such aliens themselves; and therefore it would be in contravention of the Constitution and laws of the United States, and void." *384] *With great respect, we submit that these reasons for the decision of the Supreme Court of Massachusetts are not strong enough to sustain it. No court can determine the constitutionality of a law by the extent to which its purposes are carried; for if a State has the power to pass a |