congress prior to the year eighteen hundred and eight,' is a restriction on the general power of congress to regulate commerce. In reference to this clause, this court say, in the above case, 'this section proves that the power to regulate commerce applies equally to the regulation of vessels employed in transporting men who pass from place to place voluntarily, and to those who pass involuntarily.'

"To encourage foreign emigration was a cherished policy of this country at the time the constitution was adopted. As a branch of commerce, the transportation of passengers has always given a pro fitable employment to our ships, and within a few years past ha required an amount of tonnage nearly equal to that of imported merchandise.

"Is this great branch of our commerce left open to State regulation, on the ground that the prohibition refers to an import, and a man is not an import?

"Pilot laws, enacted by the different States, have been referred to as commercial regulations. That these laws do regulate commerce, to a certain extent, is admitted; but from what authority do they derive their force? Certainly not from the States. By the 4th section of the act of the 7th August, 1789, it is provided, 'that all pilots in the bays, inlets, rivers, harbors, and ports of the United States, shall continue to be regulated in conformity with the existing laws of the States, respectively, wherein such pilots may be, or with such laws as the States may respectively hereafter enact for the purpose, until further legislative provision shall be made by congress.' These State laws, by adoption, are the laws of congress, and, as such, effect is given to them. So the laws of the States which regulate the practice of their courts are adopted by congress to regulate the practice of the federal courts. But these laws, so far as they are adopted, are as much the laws of the United States, and it has often been so held, as if they had been specially enacted by congress. repeal of them by the State, unless future changes in the acts be also adopted, does not affect their force in regard to federal action." "The act of New-York, under consideration, is called a health law. It imposes a tax on the master and every cabin passenger of a vessel from a foreign port, of one dollar and fifty cents; and of one dollar on the mate, each steerage passenger, sailor or mariner. And the master is made responsible for the tax, he having a right to exact it of the others. The funds so collected are denominated 'hospital moneys,' and are applied to the use of the marine hospital; the surplus to be paid to the treasurer of the Society for the Refor

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mation of Juvenile Delinquents in the city of New-York, for the use of that society.

"To call this a health law would seem to be a misapplication of the term. It is difficult to perceive how a health law can be extended to the reformation of juvenile offenders. On the same principle, it may be said to embrace all offenders, so as to pay the expenses incident to an administration of the criminal law. And with the same propriety it may include the expenditures of any branch of the civil administration of the city of New-York, or of the State. In fact, I can see no principle on which the fund can be limited, if it may be used as authorized by the act. The amount of the tax is as much within the discretion of the legislature of New-York as the objects to which it may be applied.

"It is insisted, if the act, as regards the hospital fund, be within the power of the State, the application of a part of the fund to other objects, as provided in the act, cannot make it unconstitutional. This argument is unsustainable. If the State has power to impose a tax to pay the necessary expenditure of a health regulation, and this power being exerted, can the tax be increased so as to pay the expenditure of the State government? This is within the principle asserted.

"The case of the city of New-York vs. Miln, (11 Pet., 102,) is relied on with great confidence, as sustaining the act in question. As I assented to the points ruled in that case, consistency, unless convinced of having erred, will compel me to support the law now before us, if it be the same in principle. The law in Miln's case required 'every master or commander of any ship or other vessel which shall arrive at New-York, to report, within twenty-four hours after its arrival, in writing, on oath or affirmation, to the mayor of the city of New-York, the naine, place of birth, and last legal settlement, age, and occupation of every passenger, and also, of such passengers, as on the voyage, had been permitted to land or go on board of some other vessel, with the intention of proceeding to said city, under the penalty on such master or commander, and the owner or owners, consignee or consignees of such ship or vessel, severally and respectively, of seventy-five dollars for each individual not so reported.' And the suit was brought against Miln, as consignee of the ship Emily, for the failure of the master to make report of the passengers on board of his vessel.

"In their opinion, this court say, 'the law operated on the territory of New-York, over which that State possesses an acknowledged and undisputed jurisdiction for every purpose of internal regulation,,

and 'on persons whose rights and duties are rightfully prescribed and controlled by the laws of the respective States, within whose territorial limits they are found.' This law was considered as an internal police regulation, and as not interfering with commerce.

"A duty was not laid upon the vessel or the passengers, but the report only was required from the master, as above stated. Now, every State has an unquestionable right to require a register of the names of the persons who come within it to reside temporarily or permanently. This was a precautionary measure, to ascertain the rights of the individuals and the obligations of the public, under any contingency which might occur. It opposed no obstruction to commerce, imposed no tax nor delay, but acted upon the master, owner, or consignee of the vessel, after the termination of the voyage, and when he was within the territory of the State, mingling with its citizens, and subject to its laws.

"But the health law, as it is called, under consideration, is altogether different in its objects and means. It imposes a tax or duty on the passengers, officers, and sailors, holding the master responsible for the amount at the immediate termination of the voyage, and necessarily before the passengers have set their feet on land. The tax on each passenger, in the discretion of the legislature, might have been five or ten dollars, or any other sum, amounting even to a prohibition of the transportation of passengers; and the professed object of the tax is as well for the benefit of juvenile offenders as for the marine hospital. And it is not denied that a considerable sum thus received has been applied to the former object. The amount and application of this tax are only important to show the consequences of the exercise of this power by the States. The principle involved is vital to the commercial power of the Union.

"The transportation of passengers is regulated by congress. More than two passengers for every five tons of the ship or vessel are prohibited under certain penalties; and the master required to report to the collector a list of the passengers from a foreign port, stating the age, sex, and occupation of each, and the place of their destination. In England, the same subject is regulated by act of parliament; and the same thing is done, it is believed, in all com. mercial countries. If the transportation of passengers be a branch of commerce, of which there can be no doubt, it follows that the act of New-York, in imposing this tax, is a regulation of commerce. It is a tax upon a commercial operation-upon what may in effect be called an import. In a commercial sense, no just distinction can be made, as regards the law in question, between the transportation

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of merchandise and passengers. For the transportation of both, the ship-owner realizes a profit, and each is the subject of a commercial regulation by congress. When the merchandise is taken from the ship, aud becomes mingled with the property of the people of the State, like other property, it is subject to the local law; but until this shall take place, the merchandise is an import, and is not subject to the taxing power of the State; and the same rule applies to passengers. When they leave the ship and mingle with the citizens of the State, they be ome subject to its laws.

"In Gibbon vs. Ogden, the court held the act of laying 'duties on imports or exports' was derived from the taxing power; and they lay much stress on the fact that this power is given in the same sentence as the power to 'lay and collect taxes.' The power,' they say, 'to re. gulate commerce is given in a separate clause, as being entirely distinct from the right to levy taxes and imposts, and as being a new power, not before conferred; and they remark that, had not the States been prohibited, they might, under the power to tax, have levied duties on imports or exports.'

"The constitution requires that all duties and imposts shall be uniform;' and declares that no preference shall be given by any regulation of commerce or revenue to the ports of one State over those of another.' Now, it is inexplicable to me how thirteen or more independent States could tax imports under these provisions of the constitution. The tax must be uniform throughout the Union; consequently, the exercise of the power by any one State would be unconstitutional, as it would destroy the uniformity of the tax To secure this uniformity was one of the motives which led to the adoption of the constitution. The want of it produced collisions in the commercial regulations of the States. But if, as is contended, these provisions of the constitution operate only on the federal government, and the States are free to regulate commerce by taxing its operations in all cases where they are not expressly prohibited, the constitution has failed to accomplish the great object of those who adopted it.

"These provisions impose restrictions on the exercise of the commercial power, which was exclusively vested in congress; and it is as binding on the States as any other exclusive power with which it is classed in the constitution.

"It is immaterial under what power duties on imports are imposed. That they are the principal means by which commerce is regu ted ao one can question. Whether duties shall be imposed with a view to protect our manufactures, or for purposes of revenue only, has

always been a leading subject of discussion in congress, and also, what foreign articles may be admitted free of duty. The force of the argument, that things untouched by the regulating power have been equally considered with those of the same class on which it has operated, is not admitted by the counsel for the defendant. But does not all experience sustain the argument? A large amount of foreign articles brought into this country for several years has been admitted free of duty. Have not these articles been considered by congress? The discussions in both houses of congress, the reports by the committees of both, and the laws that have been enacted, show that they have been duly considered.

"Except to guard its citizens against diseases and paupers, the municipal power of a State cannot prohibit the introduction of foreigners, brought to this country under the authority of congress. It may deny to them a residence, unless they shall give security to indemnify the public, should they become paupers. The slave States have the power, as this court held in Groves v. Slaughter, to prohibit slaves from being brought into them as merchandise. But this was on the ground that such a prohibition did not come within the power of congress to regulate commerce among the several States.' It is suggested that, under this view of the commercial power, slaves may be introduced into the free States. Does any one suppose that congress can ever revive the slave trade? And if this were possible, slaves thus introduced would be free."

"If this power to tax passengers from a foreign country belongs to a State, a tax, on the same principle, may be imposed on all persons coming into or passing through it to any other State of the Union. And the New-York statute does, in fact, lay a tax on passengers on board of any coasting vessel which arrives at the port of New-York, with an exception of passengers in vessels from NewJersey, Connecticut and Rhode Island, who are required to pay for one trip in each month. All other passengers pay the tax every trip. "If this may be done in New-York, every other State may do the same on all the lines of our internal navigation. Passengers on a steamboat which plies on the Ohio, the Mississippi, or on any of our other rivers, or on the lakes, may be required to pay a tax, imposed at the discretion of each State within which the boat shall touch. And this same principle will sustain a right in every State to tax all persons who shall pass through its territory on railroad cars, canal boats, stages, or in any other manner. This would enable a State to establish and enforce a non-intercourse with every other State.

"The ninth section of the first article of the constitution declares, Nor shall vessels bound to or from one State be obliged to enter,