Mayor of New York v. Miln

36 U.S. 102, 9 L. Ed. 648, 11 Pet. 102, 1837 U.S. LEXIS 169

• Court: Supreme Court of the United States
• Decided: February 16, 1837
• Status: Published

Opinions

Mr. Justice Barbour

delivered the opinion of the Court.

This case comes before this Court upon a certificate of division of. the circuit court of the United States for the southern district of New York.

It was an action of debt brought in that court by the plaintiff, to recover of the defendant, as consignee of the ship called the Emily, the amount of certain penalties imposed by a statute of New York, passed February 11th, 1824; entitled, An act concerning passengers in vessels coming to the port of New York.

The statute, amongst other things, enacts, that every master or commander of any ship, or other vessel, arriving at the port of New York, from any country out of the United States, or from any other of the United States than the state of New York, shall, within twenty-four hours after the arrival of such ship or vessel in the said port, make a report in writing, on oath or affirmation, to the mayor of the city of New York, or, in case of his sickness, or absence, to the recorder of the said city, of the name, place of birth, and last legal settlement, age and occupation, of every person who shall have been brought as a passenger in such ship or vessel, on her last voyage from any country out of the United States into the port of New York, or any of the United States, and from any of the United States other than the state of New York, to the city of New York, and of all passengers who shall have landed, or been suffered or permitted to land, from such.ship, or vessel, at any place, during such her last voyage, or have been put on board, or suffered, or permitted to go on board of any other ship or vessel, with the intention of proceeding to the. said city, under the penalty on sucn master or commander, and the owner or owners, consignee or consignees of such ship or vessel, severally and respectively, of seventjr-five dollars for every person neglected to be reported as aforesaid, and for every person whose name, place of birth, and last legal-settlement, age, and occupation, or either or any of such particulars, shall be falsely reported as aforesaid, to be sued for and recovered as therein provided.

The .declaration alleges that the defendant w.as consignee of the. ship Emily, of which a certain William Thompson was master; and that'in the month of August, 1829, said Thompson, being master of such ship, did arrive with the same in the port of New York, from a country out of the United States, and that one hundred passengers were brought in said ship on her then last voyage, from a country otit of the United States, into the port of New York; and that the said master did not maleo the report, required by the statute, as before recited.

The defendant demurred to the declaration.

The plaintiffjoined in the demurrer, and the following point, oh a division of the court, was thereupon certified to this Court, viz. :

“That the act of the legislature-of New York, mentioned in the plaintiff's declaration, assumes to regulate trade and commerce between the port of New York and foreign ports, and is unconstitutional and void.”

It is contended by the counsel for the defendant, that the act in question is a regulation of commerce; that the power to reguláte commerce is, by the constitution of the United .States, granted to congress; that this power is exclusive, and that consequently, the act is a violation of the constitution of the United States.

On the part of the plaintiff it is argued, that an affirmative grant of power previously existing in the states to congress, is not exclusive; except 1st, where it is so expressly declared in terms, by the clause giving the power; or 2dly, where a similar powrer is prohibited to the states; or 3dly, where the power in the states would be repugnant to, and incompatible'with, a similar power in congress: that this power fallís within neither of these predicaments; that it is not, in terms, declared to be- exclusive; that it is not prohibited to the states; and that it is not repugnant to, or incompatible with, a similar power in congress; and that having pre-existed in the states, they therefore have a concurrent power in relation to the subject; and that the act in question would be valid, even if it were a regulation of commerce, it not contravening any regulation made by congress.

But they deny that it is a regulation of commerce: on the contrary, they assert that it is a mere regulation of internal police, a power over which is not granted to congress; and which therefore, as well upon the trun construction of the constitution, as by force of the tenth amendment to that instrument, is reserved to, and resides in the several states.

We shall not enter into any examination of the question whether the power to regulate commerce, be or be not exclusive of the states, because the opinion which we have formed renders it unnecessary: in other words, we are of opinion that the act is not a regulation of commerce, but of police; and that being thus considered, it was passed in the exercise of a power which rightfully belonged to the states.

That the state of New York possessed power to pass this law before the adoption of the constitution of the United States, might probably be taken as a truism, without the necessity of proof. But as it may tend to present it. in a clearer point of view, we will quote a fewpassages from a standard writer upon public law, showing the origin and character of this power.

Vattel, book 2d, chap. 7th, sec. 94. “ The sovereign may forbid the entrance of his territory, either to foreigners in general, or in particular cases, or to certain persons, or for certain particular purposes, according as he may think it advantageous to the state.”

Ibid. chap. 8, sec. 100. Since the lord of the territory may, whenever he thinks proper, forbid its being entered, he has, no doubt, a power to annex what conditions he pleases, to the permission to enter."

The power then' 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.

If, as we think, it be a regulation, not of commerce, but police; then it is not taken from the states. To decide this, let us examine its purpose, the end to be attained, and the means of its attainment.

It is apparent, from the whole scope of the law, that the object of the legislature was, to prevent New'York from being burdened by an influx of persons brought thither in ships, either from foreign countries, or from any other of the states; and for that purpose a report was required of the names, places of birth, &c. of all passengers, that the necessary steps might be taken by the city authorities, to prevent them from becoming chargeable as paupers.

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 government. Let 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 coürse of affairs, concern the lives, liberties, and properties of the people; and the internal order, improvement, and prosperity of thé 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 comnonent 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 tlrkt state are authorized and in duty bound to provide.

If we turn our attention to the purpose to be attained, it is to secure that very protection, and to provide for that eery 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.

But we are told that it violates the constitution of the "United-States, and to prove this we have been referred to two cases in this court; the first, that of Gibbons v. Ogden, 9 Wheat. 1, and the other that of Brown v. The State of Maryland, 12 Wheat. 419.

The point decided in the first of these cases is, that the acts of the legislature of New York, granting to certain individuals the exclusive navigation of all the waters within the jurisdiction of that state, with boats moved by steam, for a term of years, are repugnant to the clause of the constitution of the United States which authorizes congress to regulate commerce, so far as the said acts prohibit vessels licensed according to the laws of the United States for carrying on the coasting trade, from navigating said waters by means of steam. In coming to that conclusion, this Court, in its reasoning, laid down several propositions; such as, that the power over commerce included navigation; that it extended to the navigable waters of the states; that it extended to navigation carried on by vessels exclusively employed in transporting passengers. Now, all this reasoning was intended to prove that a steam vessel licensed for the coasting trade, was lawfully licensed by virtue of an act of congress; and that as the exclusive right to navigate the waters of New York, granted by the law of that state, if suffered to operate, would be in collision with the right of the vessel- licensed under the act of congress to navigate the same waters; and that as when that collision occurred the law of the states must yield to that of the United States, when lawfully enacted; therefore, the act of the state of New York was in that case void.

The second case, to wit, that of Brown against The State of Maryland, 12 Wheat. 419, decided that the act of the state of Maryland, requiring all importers of foreign goods by the bale or package, and other persons selling the same by wholesale, bale or package, &c., to take out a license for which they should pay fifty dollars, and in case of neglect or refusal to take out such license, subjecting them to certain forfeitures and penalties, was repugnant, first, to that provision of the constitution of the United States, which declares that “ no. state shall, without the consent of congress, lay any impost, or duty on imports or exports, except what may be absolutely necessary fpr executing its inspection laws;” and secondly, to that which defilares that congress shall have power “to regulate commerce with foreign nations, among the several state., and with the Indian tribes.”

Now, it is apparent from this short analysis of these two cases, that the question involved in this case is not the very point which was decided in either of those which have been referred to.

Let us examine whether, in the reasoning of the Court, there is any principle laid down in either of them, which will go to prove that the section of the law of New York, on which this prosecution is founded, isa violation of the-constitution of the United States.'

In Gibbons against Ogden, the law of the state assumed to exercise authority over the navigable waters of the state; to do so, by granting a privilege to certain individuals, and by excluding ,all others from navigating them by vessels propelled- by steam; and in the particular case, this law was brought to bear in its operation directly upon a vessel sailing under a coasting license from the United States.

The Court were- of opinion, that as the power to regulate commerce embraced within its scope that of regulating navigation also; as the power over navigation extended to all the navigable waters of the United States; as the waters on which Gibbons’ vessel was sailing were navigable; and as.his vessel was sailing under the authority of an act of congress; the law of the state, which assumed by its exclusive privilege granted to others, to deprive a vessel thus authorized of the right of navigating the same waters, was - a violation of the constitution pf the United States, because it directly conflicted vvith the power of congress to regulate commerce. Now, there is not, in this case, one of the circumstances which existed in that of Gibbons v. Ogden, which, in the opinion of the Court, rendered it obnoxious to the charge of unconstitutionality.

On the contrary, the prominent facts of this case are in stinking contrast with those which characterized that.1

In that’case, the theatre on which the law operated was navigable water, over which the Court say that the power to regulate commerce extended; in this, it was the territory of New York over which that state possesses an acknowledged and undisputed jurisdiction for every purpose of internal regulation: in that, the subject matter on which it operated, was a vessel claiming the right of navigation; a right which the Court say is embraced in the power to regulate commerce: in this, the subjects on which it operates are persons whose rights and whose duties are rightfully prescribed and controlled by the laws of the respective states within whose territorial limits they are found: in that, say the Court, the act of a state came into direct collision with an act of the United States; in this, no such collision exists.

Nor is there the least likeness between the facts of this case, and those of Brown against The State of Maryland. The great grounds upon which the Court put that case were: — that sale is the object of all importation of goods; that, therefore, the power to allow importation, implied the power to authorize the sale of the thing imported: that a penalty inflicted for selling an article in the character of importer, was in opposition to the act of congress, which authorized importation under the authority to regulate commerce: that a power to tax an article in the hands of the importer the instant it was landéd, was the same in effect as a po\ er to tax it whilst entering the port; that, consequently, the law of Maryland w is obnoxious to the charge of unconstitutionality, on the ground of its violating the two provisions of the constitution; the one giving to congress the power to regulate commerce, the other forbidding the states from taxing imports.

In this case, it will be seen that the discussion of the Court had reference to the extent of the power given to congress to regulate commerce, and to the extent of the prohibition upon the states from imposing any duty upon imports. Now it is difficult to perceive what analogy there can be between a case where the right of the state was inquired into, in relation to a tax imposed upon the sale of imported goods, and one where, as in this case, the inquiry is as to its right over persons within its acknowledged jurisdiction; the goods are the subject of commerce, the persons are not: the Court did indeed extend the power to regulate commerce, so as to protect the goods imported from a state tax after they were landed, and were yet in bulk; but why? Because they were the subjects of commerce; and because, as the 'power to regulate commerce, under which the importation was made, implied a right to sell; that right was complete, without paying the state for a second right to. sell, whilst the bales or packages were in their original form. But how can this apply to persons? They are not the subject of commerce; and, not being imnorted goods, cannot fall within a train of reasoning founded uponNhe construction of a power given to congress to regulate commerce, and the prohibition to the states from imposing a duty on imported goods.

Whilst, however, neither of the points decided in the cases thus referred to, is the same with that now under consideration, -and whilst the general scope of the reasoning of the Court in each of them, applies to questions of a different nature; there is a portion of that reasoning in-each which- has a direct bearing upon the present subject, and which would justify measures on' the part of states, not only approaching the line which separates regulations of commerce from those of police, but even those which arc almost identical with the former class, if adopted in the exercise of one of their acknowledged powers. In Gibbons against Ogden, 9 Wheaton, 204, the Court say, if a state, in passing laws on a subject acknowledged to be within its control, and, with a view to those subjects, shall adopt a measure of the same character with one which congress may adopt; it does not derive its authority from the particular power which has been granted, but from some other which remains with the state, and may be executed by the same means. All experience shows that the same measures, or measures scarcely distinguishable from each other, may flow from distinct powers; but this does not prove that the powers are identical. Although the means used in their execution may sometimes approach each other, so nearly as to be confounded, there are other situations in which they are sufficiently distinct to establish their individuality.

In page 209, the Court say : — Since, however, in regulating their own purely internal affairs, whether of trading or of police, the states may sometimes enact laws, the validity of which depends on their interfering with, and being contrary to an act of congress passed in pursuance of the constitution; they would inquire whether there was such collision in that case, and they came to the conclusion that there was.

From this it appears, that whilst a state is acting within the legitimate scope of its power as to the end to be attained, it may use whatsoever means, being appropriate to that end, it may think fit; although they may be the same, or so nearly the same, as scarcely to be distinguishable from those adopted by congress acting’ under a different power: subject, only, say the Court, to this limitation, that in the event of collision, the law of the state must yield to the law of congress. The Court must be understood, of course, as meaning that the law of congress is passed upon a, subject within the sphere of its power.

Even then, if the section of the act in question could be considered as partaking of the nature of a commercial regulation, the principle here laid down would save it from condemnation, if no such collision exist.

It has been contended, at the bar, that there is that collision; and in proof of it we have been referred to the revenue act of 1799, and to the act of 1819, relating to passengers. The whole amount of the provision in relation to this subject, in .the first of these acts, is to require, in the manifest of a cargo of goods, a statement of the names of the passengers, with their baggage, specifying the number and description of packages belonging to each respectively: now it is apparent, as well from the language of this provision, as from the context, that the purpose was to prevent goods being imported without paying the duties required by law, under the pretext of being the baggage of passengers.

The act of 1819, contains regulations obviously designed for the comfort of the passengers themselvés: for this purpose it ¡prohibits the bringing more than a certain number proportioned to the tonnage of the vessel, and prescribes the kind and quality of provisions, or sea stores, and their quantity, in a certain proportion to the number of the passengers.

Another section requires the master to report to the collector a list of all passengers, designating the age, sex, occupation, the country to which they belong, &c.; which'list is required to be delivered to the secretary of state, and which he is directed to lay before congress.

The object of this clause, in all probability, was to enable the government of the United States, to form an accurate estimate of the increase of population by emigration; but whatsoever may have been its purpose, it is obvious, that these laws only affect, through the power over navigation, the passengers whilst on their voyage, and until they shall have landed. After that, and when they have ceased to l^ave any connexion with the ship, and when, therefore, they have ceased to be passengers; we are satisfied, that acts qf congress, applying to them as such, and only professing to legislate in relation to them, as such, have then performed their office, and can, with no propriety of language, be said to come into conflict with the law of a state, whose operation only begins when that of the laws of congress ends; whose operation is not even on the same subject, because although the person on whom it operates is the same, yet having ceased to be a passenger, he no longer stands in the only relation in which the laws of congress either professed or intended to act upon him.

There is, then, no collision between the law in question, and the acts of congress just commented on; and, therefore, if the state law were to be considered as partaking of the nature pf a commercial regulation; it would stand the test of the most rigid scrutiny, if tried by the standard laid down in the reasoning of the Court, quoted from the case of Gibbons against Ogden.

But we do not place our opinion.on this ground. 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 pot 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 sur rendered 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 multifariou 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; whethér it respected them as men, or as citizens of the state; whether in their public or private relations; whether it related to the rights of persons, or of property, of the whole people of a 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. But we will endeavour to illustrate our meaning rather by exemplification, than by definition. No one will deny, that a state .has a right to punish any individual found within its jurisdiction, who shall have committed an offence within its jurisdiction, against its criminal laws. We speak not here of foreign ambassadors, as to whom the doctrines of public law apply. We suppose it to be equally clear, that a state has as much right to guard, by anticipation, against the commission of an offence against its laws, as to inflict punishment upon the offender after it shall have been committed. The right to punish, or to prevent crime, does in no degree depend upon the citizenship of the party who is obnoxious to the law. • The alien who shall just have set his foot upon the soil of the state, is just as subject to the operation of the law, as one who is a native citizen. In this very case, if either the master, or one of the crew of the Emily, or one of the passengers who were landed, had, the next hour after they came on shore, committed an offence, or indicated a disposition to do so; he would have been subject to the criminal law of New York, either by punishment for the offence committed, Or by prevention from its commission where good ground for apprehension was shown, by being required to enter into a recognisance with surety, either to keep the peace, or be of good behaviour, as the case might be; and if he failed to give it,.by liability to be imprisoned in the discretion of the competent authority. Let us follow this up to its possible results. If every officer, and every seaman belonging to the Emily, had participated in the crime, they would all have been liable to arrest and punishment;, although, thereby, the vessel would have been left without either commander or crew. Now why is this ? For no other reason than this, simply, that being within the territory and jurisdiction of New York, they were liable to the laws of that state, and amongst others, to its criminal laws; and this too, not only for treason, murder, and other crimes cf that degree of atrocity, but for the most petty offence which can be'imagined. j

It would have availed neither officer, seaman, or passenger, to have alleged either of these several relations in the recent voyage across the Atlantic. The short but decisive answer would have been, that we know you now only as offenders^against the criminal laws of Newvork, and being now within her .jurisdiction, you are now liable to the cognisance of those laws. .Surely the officers and seamen of the vessel have not only as much, but more concern.with navigation than a passenger; and yet, in the case here put, any and every one of them would be held liable. There would be the same' liability, and for the same reasons, on the part of the officers, seamen,' and passengers to the civil process of New York, in a suit for the most trivial sum; and if, according to the laws of that state, the party might be arrested, and held to bail, in the event of his failing to give it, he might be imprisoned until discharged by law.

Here, then, are the officers and seamen, the very agents of navigation, liable to be arrested and imprisoned under civil process, and to arrest and punishment under- the criminal law.

But tlie instrument of navigation, that is, -the vessel, when within the jurisdiction of the state, is also liable by its laws to execution. If the state have a right to vindicate its criminal justice against the officers, seamén, and passengers who are within its jurisdiction, and also, in the administration of its civil justice, to cause process of execution to be served on the body of the very agents of navigation, and also on the instrument of navigation, under which it may be' sold, because they are within its jurisdiction and subject to its laws; the same reasons, precisely, equally subject the master, in the case before the Court, to liability for failure to comply with the requisitions of the section of the statute sued upon. Each of these laws depends upon the same principle for its support; and that is, that-it was passed by the state of New York, by virtue of her power to enact such laws for her internal police as it deemed best; which laws operate upon the persons and things within her territorial limits, and therefore within her jurisdiction

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 emigrants 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 endeayoured 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.

Let us compare this power with a mass of power, said by this -Court in Gibbons against Ogden, not to be surrendered to the general government. They are inspection laws, quarantine laws, health laws of every description, as well as laws for regulating the internal commerce of a state, &c. To which it may be added, that this Court, in Brown against The State of Maryland, admits the power of a state to direct the removal of gunpowder, as a branch of the- police power, which unquestionably remains, and ought to remain with the states.

It is easy to show, that if these powers,, as 'is admitted, remain with the states, they are stronger examples than the one now in question. The power to pass inspection laws, involves the right to examine articles which are imported, and are, therefore, directly the subject of commerce; and' if. any of them are found to be unsound, or infectious, to cause them to be removed, or even destroyed. But the power to pass these inspection laws, is itself a branch of the general power to regulate internal police.

Again, the power to pass quarantine laws, operates on the ship which arrives, the goods which it brings, and all persons in it, whether the officers and crew, or the passengers;:now the officers and crew are the agents of navigation; the ship is an instrument of it; and the cargo on board is the- subject of commerce: and yet it is not only admitted, that this power remains with the states, but the laws of the United States expressly sanction the quarantines, and other restraints which shall be required and established by the'health laws of any state; and declare that they shall be duly observed by the collectors and all other revenue officers of the United States.

We consider it unnecessary to pursue this comparison further; because we think, that if the stronger powers under the necessity of the case; by inspection laws and quarantine laws to delay the landing of a ship and cargo, which are the subjects of commerce and navigation, and to remove or even to destroy unsound and infectious articles, also the subject of commerce, can be rightfully exercised; then, that it must follow as a consequence, that powers less strong, such as the one in question, which operates upon no subject either of commerce or navigation, but which operates-alone within the limit? 'and jurisdiction of New York upon a person, at the time not even engaged in navigation,, is still more clearly embraced within the general power of the states to regulate their own internal police, and to take care that no detriment come .to the commonwealth.

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 labouring under an infectious disease.

As to any supposed conflict between this provision and certain treaties of the United States, by which reciprocity as to trade and intercourse is granted to the citizens of the governments, with which those treaties were made; it is obvious to remark, that the record does not show that any person in this case was a subject or citizen of a country to which treaty stipulation applies: but, moreover, those which we have examined, stipulate that the-citizens and subjects of the contracting parties shall submit themselves to the laws, decrees, and usages to which native citizens and subjects are subjected.

We are therefore of opinion, and do direct it to be certified to the circuit court for the southern-district of New York, that so much of the section of the act of the legislature of New York, as applies to the breaches assigned in the declaration, does-not assume to regulate commerce between the port of New York and foreign ports; and that so much of said section is constitutional.

We express no opinion on any other part of me act of the legislature of Néw York; because no question could arise in the case in relation to any part of the act, except that declared upon. ■ •

Mr. Justice Thompson.

This case comes up from the circuit court for the southern district of New York, upon a certificate of a division of opinion of the judges upon a question which arose upon the trial of the cause.

The action is founded upon an act of the legislature of the state oi New York, concerning passengers in vessels coming to the port-of New York; .and is brought against the defendant, being consignee of the ship Emily, to recover certain penalties given in the act for the neglect of the master of the. ship to make a report to the mayor of New York, of the name and description of the passengers who. had been brought in the ship on her last voyage.

The declaration sets out, in part, the- law on which the action is founded; and avers, that on the 27th day of August, iri the year 1829, William Thompson, being master or commander of said ship, did arrive with the said ship or vessel in the port of New York from a country out of the United States, to wit, from Liverpool in England, or- from one of the United States other than this state (New York,) to wit, from the state of New Jers'-y, at-the city and within the county of New York; and it is further averred, that onejhundred persons were brought as passengers in said ship, on her last voyage, from a country out of the United States, to wit, from Liverpool aforesaid, into the port of New York, or into one of the United States, other than the state of New York, to wit, into the state of New Jersey, and from thence to the city of New York; and that the said master of the vessel did not, within twenty-four hours after the arrival of the ship in the port of New York, make a report in writing to the mayor or recorder of the said city, of the name, place of birth, and last legal settlement, age and occupation of the said several persons so brought as passengers in said ship, pursuant to the provisions of the act, in part herein before recited; but that a large number of the said persons, to wit, one hundred, were neglected to be reported, contrary to the directions and provisions of the said act, whereby an action hath accrued to the plaintiff, to demand and have from the defendant, the consignee of the said ship, the sum of seven thousand five hundred dollars. To this declaration there is a general demurrer and joinder.

The certificate then states, that the cause was continued from term to term until the last Monday in October, in the year 1829, at which term the following point was presented^ on the part of the defendant, viz. That the act of the legislature of the state of New York, mentioned in the plaintiff’s declaration, assumes to regulate trade and commerce between the port of New York and foreign ports; and is unconstitutional and void. And upon the question thus occurring, the opinion of the two judges were opposed; and the point upon which the disagreement happened, is certified to this Court.

Although the point as here stated is general, and might embrace the whole of the act referred to in the plaintiff’s declaration; yet its validity cannot come under consideration here, any further than it applied to the question before the.circuit court. The question arose upon a general demurrer to the declaration, and the certificate under which the cause is sent here contains the pleadings upon which the question arose, and show that no part of the act was drawn in question, except that which relates to the neglect of the master to report to the mayor or recorder an account of his passengers, according to the requisition of the act. No other part of the act could have been brought.under the consideration of the circuit court, or could now be passed upon by. this Court, was it even presented in a separate and distinct point. For this Court will not entertain any abstract question, upon a certificate of division of opinion, which does not arise in the cause. The question must occur before the circuit court, according to the express terms of the act of congress, in order to come here upon such division of opinion. And if the only cause of action alleged in the declaration, was the neglect of the master to report his passengers to the mayor or recorder, no other part of 'the act could have been drawn in question; and although the question as stated, may be broader than was necessary, yet as the declaration and demurrer are embraced-in the certificate, the question in the circuit court cannot be mistaken. The certificate might have been sent back for a more specific statement of the point; but as the breach is assigned under this part of the act only, and as we see that no other part of the act .could have been drawn in question in the circuit court, it is not deemed necessary to send the cause back for a more specific statement of the point. I shall accordingly confine my inquiries simply to that part of the act of the legislature of the state of New York, which requires the master, within twenty-four hours after the arrival of the vessel in the port of New York, to make a report in writing to the mayor or recorder, of the name, place of birth, and last legal settlement, age and occupation of every person who shall have been brought as a passenger in' such ship or vessel on her last voyage. I do not mean, however, to intimate, that nnv other part of the act is unconstitutional; but confine my inquiries ’c-the part here referred to, because it is the only part that can arise in this case. And any opinion expressed upon other parts, would be extrajudicial.

This act is alleged to .be unconstitutional, on the ground that it assumes to regulate trade ánd commerce between the port of New York, and foreign ports; and is a violation of that part of the constitution of the United States, which gives to congress the power to regulate commerce with foreign nations.

This clause in the constitution has repeatedly been drawn in question before this Court, and has undergone elaborate discussion, both at the bar and upon the bench; and so far as any points have been settled, I do not consider them now open for examination. In the leading cases upon this question, where the state law has been held to be unconstitutional, there was an actual conflict between the legislation of congress and chat of the states, upon the right drawn in question: 9 Wheat. 195; 12 Wheat. 446; 6 Peters, 515. And in all such cases the law of congress is supreme; and the state law, though enacted in the exercise of powers not controverted, must yield to it But in the case now before the Court, no such conflict arises; congress has not legislated on this subject, in any manner to affect this question. By the 23d section of the duty act of 1799, 3 vol. L. U. S. 158; it is required that the manifest shall contain the names of the several passengers, distinguishing whether cabin or steerage passengers, or both, with their baggage, specifying the number and description of packages belonging to each, respectively;. but this is a mere revenue law, having no relation to the passengers after they have landed. Nor does the act regulating passenger ships and vessels, 6 vol. L. U. S. 379, at all conflict with this state law. Its principal object is to provide for the comfort and safety of passengers on the voyage; it requires the captain or master of the vessel, to deliver a list or manifest of all passengers, with the manifest of the cargo; and the collector is directed to return, quarterly, to the secretary of state,, copies of such list of passengers; by whom statements of the same is required to be laid before congress, at every session: by which it is evident that Some statistical or political object was in view by this provision.

It is not necessary, in this case, to fix any limits upon the legislation of congress and of the states, on this subject; or to say how far congress may, under the power to regulate commerce, control, state legislation in this respect. It is enough to say that whatever the power of engress may be, it has not been exercised so as, in any manner, to conflict with the state law; and if the mere grant of the power to congress does not necessarily imply a prohibition of the states to exercise the power, until congress assumes to exercise it; no objection, on that ground can arise to this law.

Nor is it necessary to decide, definitively, whether the provisions of this, law may he considered as at all embraced within the power to regulate commerce Under either view of the case, the law of New York, so far at least as it is drawn in question in the present suit, is entirely unobjectionable.

This law does not, in any respect, interfere with the entry of the vessel or cargo. It requires the report of the master to be made within twenty-four hours after the arrival of the vessel. In the case of Gibbons v. Ogden, 9 Wheat. 195, it is said, the genius and character of the whole government seems to be that its action is to be applied to all the external 'concerns of the nation, and to those internal concerns which. affect the states generally, but not to those which are completely within a particular state, which do not affect other states i mid with which it is not necessary to interfere for the purpose of executing some of the general powers of the government. The completely internal commerce of a state may then be considered as reserved for the state itself.

To test the present case by this rule. The duty here imposed arises after, the master and passengers have arrived within the limits of the state, and is applied to the purely internal concerns of the state. This provision does not affect other states, or any subject necessary for the purpose of executing any of the general powers of the government of the Union. For although commerce, within the sense of the constitution, may mean intercourse, and the power to regulate it be co-extensive with the subject on which it acts, and cannot be stopped at the external boundary of a state, according to the language of this Court in the case of Brown v. The State of Maryland, 12 Wheat. 446 ; it cannot be claimed that the master, or the passengers, are exempted from any duty imposed by the laws of a state, after their arrival within its jurisdiction ; or have a right to wander, uncontrolled, after they become mixed with the general population of the state; or that any greater rights or privileges attach to them, because they come in through the medium of navigation, than if they come by land from an adjoining state: and if the state had a right to guard against paupers becoming chargeable to the city, it would seem necessarily to follow, that it .had the power tc prescribe the means of ascertaining who they were, and a list of their names is indispensable to effect that object. The purposes intended to be answered by this law fall within that internal police of the state; which, throughout the whole case of Gibbons v. Ogden, is admitted to remain with the states. The Court there, in speaking of inspection laws, 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. No direct general power over these- objects is granted to congress: and, consequently,-they remain subject testate legislation. If the legislative power of the state can reach them, it must be for national purposes; it must be when the power is expressly given for a special purpose, or is clearly incidental to some power which is expressly givén. Again, in speaking of the law relative to the regulation of pilots, it is said, that when the government of "the Union was brought into existence, it found a system for 'the regulation of its pilots in full force in every state; and that the adoption of these laws, as also the prospective legislation of the states, manifests an intention to letovqthis subject entirely to the states, until congress should think proper to interpose: but that the section of the law under .consideration is confined to pilots within the bays, inlets, rivers, harbours, and ports of the United States, which are, of course, in' whole or in part, within the limits of some particular state:’ and that the acknowledged power of a state to regulate its police, its domestic trade, and to govern its own citizens, may enable it to legislate on this, subject to a considerable extent. But that the adoption of the state system, being temporary until further legislative provision shall be made by congress; shows, conclusively, an opinion that congress could control the whole subject, and might adopt the system-of the states or provide one of its own. Here seems to be a full recognition of the right of a state to legislate on a subject coming confessedly within the power to regulate commerce, until congress adopts-a system of its own.

And again, in the case of Brown v. The State of Maryland, the Court, in speaking of state laws' in relation to gunpowder, say; the power to direct the removal’ of gunpowder is a branch of the police power,' which unquestionably remains and ought to remain with the states. The state law here is brought to act directly upon the article imported, and may even prevent its landing, because it might endanger the public safety.

Can any thing fall more directly within the police power and internal regulation of a state, than that which concerns the care and management of paupers or convicts, or any other class or description of persons that may be thrown into the country, and likely to endanger its safety, or become chargeable for their maintenance? It is not intended by this remark to cast any reproach upon foreigners who may arrive in this country. But if all power to guard against these mischiefs is taken away, the safety and welfare of the community may be very much endangered.

A resolution of the old congress passed-on the 16th of September, 1788, has an important bearing on this subject; 13 vol. Journals of Congress, 142. It is as follows: “ Resolved, that it be and it is hereby recommended to the several states to pass proper laws for preventing the transportation of convicted malefactors from foreign countries into the United States.” Although this resolution is confined to a certain description of persons; the principle involved in it must embrace every description which may be thought to-endanger the safety and security of the country. But the more important bearing which this resolution has upon the question now before the Court, relates to the source of the power which is to interpose this protection. It was passed after the adoption of the constitution by the convention, which was on the 17th of September, 1787. It was moved by Mr. Baldwin, and seconded by Mr. Williamson, both distinguished members of the convention, which formed the constitution; and is a strong cotemporaneous expression, not only of their opinion, but that cf congress, that this was a power resting with the states; and not only not relinquished by the states, or embraced in any powers granted to the general government, but still remains exclusively in the states.

The case of Wilson v. Blackbird Creek Marsh Company, 2 Peters, 251, is a strong case to show that a power admitted to fall within the power to regulate commerce, may be exercised by the states until congress assumes the exercise. The state law under consideration in that case, authorized the erection of a dam across a creek, up -which the tide flows for some distance, and thereby abridged the right of navigation by those who had been accustomed to use it. The Court say, “ The counsel for the plaintiff in error insist that it comes in conflict with the power of the United States to regulate commerce with foreign nations, and among the several states. If congress had passed any act which bore upon the case; any act in execution of the power to regulate commerce, the object, of which was to control state legislation ever those small navigable creeks into which the tide flows, and which abound throughout the lower country of the middle and southern states; we should not have much difficulty in saying, that a state law, coming in conflict with such act, would be void. But congress has passed no such act. The repugnancy of the law of Delaware to the constitution, is placed entirely on its repugnancy to the power to regulate commerce with foreign nations, and among the several states; a power which has not been so exercised as to affect the question. We do not think that tHe act empowering. the Blackbird Creek Marsh Company to place a dam across the creek, can, under all the circumstances of the case, be considered as repugnant to the power to regulate commerce in its dormant state; or a's beiiig in conflict with any law passed on the subject. The state law here operated upon the navigation of waters, over which the power to regulate commerce confessedly extends; and yet the state law, not coming in conflict with any act of congress, was held not to be unconstitutional; and was not affected by the dormant power to regulate commerce. By the same rule of construction, the law of New York, not coming in conflict with any act of congress, is not void by- reason of the dormant power to regulate commerce; even if it should be admitted that the subject embraced in that law.fell within such power. This principle is fully recognised by the whole Court, in the case of Houston v. Moore, 5 Wheat. 1. The validity of a law of the. state of Pennsylvania, relative to the militia of that state, came under the consideration of the Court; and Mr. Justice Washington, who spoke for a majority of the Court, says: — It may be admitted at once, that the militia belongs to the states respectively in which they are enrolled; and that they are subject, both in their civil and military capacities, to the jurisdiction and laws of such state, except so far as those laws are controlled by acts of congress, constitutionally made. Congress has power to provide for organizing, arming, and disciplining the militia; and it is presumable that the framers of the constitution contemplated a full exercise of this power. Nevertheless, if congress had declin0'1 to exercise them, it was competent for the state governments to provide for organizing, arming, and disciplining their respective militia in such manner as they may,think proper. And Mr. Justice Johnson, who dissented from the Court in the result of the judgment, when speaking on this point, says: — It is contended that if the states do possess this power over the militia, they may abuse it. This, says he, is a branch of the exploded doctrine that within the scope , in which congress may legislate, the states shall not legislate. That they cannot, when legislating within that wide region of p wer, run counter to the laws of congress, is denied by no one. When instances of this opposition occur, it will be time enough to meet them. And Mr. Justice Story, who also dissented from the result of the judgment, is still more full and explicit on this point. The constitution, says he, containing a grant of powers in many instances similar to those already existing in the State governments; and some of these being of vital importance also to state authority and state legislation, it is not to be admitted that a mere grant of such, powers, in affirmative terms, to congress, does, per se, transfer an exclusive sovereignty on such subjects to the latter. On the contrary, a reasonable interpretation of that instrument necessarily leads to the conclusion that the powers so granted are never exclusive of similar powers existing in the states; unless when-the constitution has expressly, in terms, given an exclusive power to congress, or the exercise of a like power is prohibited to the states; or where there is a direct repugnancy, or incompatibility, in the exercise of it by the states. The example of the first class is to be found in the exclusive legislation delegated to congress over places purchased by the consent of the legislature of the state in which the same shall be, for forts, arsenals, dock-yards, &c.; of the second class, the prohibition of a state to coin money, or emit bills of credit; of the third class, as this Court has already held, the power to establish an uniform rule of naturalization, and the delegation, of a'dmiralty and maritime jurisdiction. In all othef cases, not falling within the classes already mentioned, it seems unquestionable that the states retain concurrent authority with congress; not only upon the letter and spirit of the eleventh amendment of the constitution, but upon the soundest principle of reasoning. There is this reserve, however, that in cases of concurrent authority, when the laws of a state, and of the Union, are in direct and manifest collision on the same subject; those of the Union, being the supreme law of the land, are of paramount authority; and the state laws so far, and so far only as such incompatibility exists, must necessarily yield.”

Whether, therefore, the law of New York, so far as it is drawn in question in this case, be considered as relating purely to the police and internal government of the state, and as part of the system of poor laws in the city of New York, and in this view belonging exclusively to the legislation of the state; or whether the subject matter of the law be considered as belonging concurrently to the state and to congress, but never having been exercised by the latter; no constitutional objection can be made to it. Although the law, as set out in the record, appears to have been recently passed, 11th February, 1824, yet a similar law has been in force in that state for nearly forty years, 1 Rev. Laws of 1801, p. 556; and from the references at the argument to the legislation of other states, especially those bordering on the Atlantic, similar laws exist in those states. To pronounce all such laws unconstitutional, would be productive of the most serious and alarming consequences; and ought not to be done, unless demanded by the most clear and unquestioned construction of the constitution.

It has been argued at the bar, that this law violates certain treaties between the United States and foreign nations, and the treaties with Brazil, Prussia, and Austria, 8 vol. L. U. S. 910, 924, 946, have been referred to as being in conflict with it. It would be a sufficient answer to this objection, that the national character of the defendant, or of the master or vessel, do not appear upon the record accompanying the certificate, so as to enable the Court to inquire whether the law conflicts with any treaty Stipulation. But there is nothing in the law, so far at all events as it relates to the present case, which is at all at variance with any of the treaties referred to. These treaties were entered into for the purpose of establishing a reciprocity of commercial intercourse between the contracting parties; but give no privileges or exemptions to the' citizens or subjects of the one country over those of the other. But i$" some of them, particularly in the treaty with Brazil, it is expressly provided that the citizens and subjects of' each of the contracting parties shall enjoy all the rights, privileges and exemptions in navigation and commerce, which native citizens or subjects do or shall enjoy; submitting themselves to the laws, decrees, and usages there established, to which native citizens or subjects are subjected. And the other' treaties. referred to, have substantially the same provision.

Whether the law of New'York, so far as it applies to the case now before the. Court, be considered as a mere police regulation, and the exercise of a power belonging exclusively to the state; or whether it be considered as legislating on a subject falling within the power to regulate commerce, but which still remains dormant, congress not having exercised any power conflicting with the law in this respect; no constitutional objection can, in my judgment, arise against it. I have' chosen to. consider this question under this double aspect, because I do not find, as yet laid down by this Court, any certain and defined limits to the exercise of this power to regulate commerce; or what shall be considered commerce with foreign nations, and what the regulations of domestic trade and police. And when it is denied that á state.' law, in requiring a list of the passengers. arriving in the port of New York, from a foreign country, to be reported to the police authority of the city, is unconstitutional and void, because embraced within that power; I am at a loss.to say where its limits .are to be found. It becomes, therefore, a very impiortant principle to establish, that the states retain the exercise of powers; which”, although they may in some measure partake of the character of commercial regulations; until congress asserts the exercise of the power under the grant of the power to -regulate commerce.