out the southern States, in spite of any State law to the contrary ; inevitably producing the most serious discontent, and ultimately leading to the most painful consequences. It will hardly be said that such a power was granted to the general government, in the confidence that it would not be abused. The statesmen of that day were too wise and too well read in the lessons of history and of their own times, to confer unnecessary authority under any such delusion. And I cannot imagine any power more unnecessary to the general government, and at the same time more dangerous and full of peril to the States."

Speaking of the argument founded on the 9th section of the 1st article of the constitution, he says:

"At the time of the adoption of the constitution, this clause was understood by its friends to apply altogether to slaves. The Madison papers will show that it was introduced and adopted solely to prevent congress before the time specified, from prohibiting the introduction of slaves from Africa into such States as should think proper to admit them. It was discussed on that ground in the debates upon it in the convention; and the same construction is given to it in the 42d number of the Federalist, which was written by Mr. Madison; and certainly nobody could have understood the object and intention of this clause better than he did.

"It appears from this number of the Federalist, that those who in that day were opposed to the constitution, and endeavoring to prevent its adoption, represented the word 'migration' as embracing freemen who might desire to migrate from Europe to this country, and objected to the clause because it put it in the power of congress to prevent it. But the objection made on that ground is dismissed in a few words, as being so evidently founded on misconstruction as to be unworthy of serious reply; and it is proper to remark, that the objection then was, that it was calculated to prevent voluntary and beneficial emigration from Europe, which all the States desired to encourage. Now, the argument is, that it was inserted to secure it, and to prevent it from being interrupted by the States. If the word can be applied to voluntary emigrants, the construction put upon it by those who opposed the constitution is certainly the just one: for it is difficult to imagine why a power should be so explicitly and carefully conferred on congress to prohibit emigration, unless the majority of the States desired to put an end to it, and to prevent any particular State from contravening this policy. But it is admitted on all hands, that it was then the policy of all the States to encou

rage emigration, as it was also the policy of the far greater number of them to discourage the African slave trade. And with these opposite views upon these two subjects, the framers of the constitution would never have bound them together in the same clause, nor spoken of them as kindred subjects which ought to be treated alike, and which it would be the probable policy of congress to prohibit at the same time. No State could fear any evil from the discouragement of immigration by other States, because it would have the power of opening its own doors to the emigrant, and of securing to itself the advantages it desired. The refusal of other States could in no degree affect its interests or counteract its policy. It is only upon the ground that they considered it an evil, and desired to prevent it, that this word can be construed to mean freemen, and to class them in the same provision, and in the same words, with the importation of slaves. The imitation of the prohibition also shows that it does not apply to voluntary emigrants. Congress could not prohibit the migration and importation of such persons during the time specified, in such States as might think proper to admit them? This provision clearly implies that there was a well-known difference of policy among the States upon the subject to which this article relates. Now, in regard to voluntary immigrants, all the States, without exception, not only admitted them, but encouraged them to come; and the words 'in such States as may think proper to admit them' would have been useless and out of place, if applied to voluntary immigrants. But in relation to slaves it was known to he otherwise for while the African slave trade was still permitted in some of the more southern States, it had been prohibited many years before, not only in what are now called free States, but also in States where slavery still exists. In Maryland, for example, it was prohibited as early as 1783. The qualification of the power of prohibition, therefore, by the words above mentioned, was entirely appropriate to the importation of slaves, but inappropriate and useless in relation to freemen. They could not and would not have been inserted if the clause in question embraced them.

I admit that the word migration, in this clause of the constitution, has occasioned some difficulty in its construction; yet it was, in my judgment, inserted to prevent doubts or cavils upon its meaning: for, as the words imports and importation in the English laws had always been applied to property and things, as contradistinguished from person, it seems to have been apprehended that disputes might arise whether these words covered the introduction of men into the country, although these men were the property of the persons who brought

them in. The framers of the constitution were unwilling to use the word slaves in the instrument, and described them as persons; and o describing them, it employed a word that would describe them as persons, and which had uniformly been used when persons were spoken of, and also the word which was always applied to matters of property. The whole context of the sentence, and its provisions and limitations, and the construction given to it by those who assisted in framing the clause in question, show that it was intended to embrace those persons only who were brought in as property.

"But apart from these considerations, and assuming that the word migration was intended to describe those who voluntarily came into the country, the power granted is merely a power to prohibit, not a power to compel the States to admit.

"And it is carrying the powers of the general government by construction, and without express grant or necessary implication, much further than has ever heretofore been done, if the former is to be construed to carry with it the latter. The powers are totally different in their nature, and totally different in their action on the States. The prohibition could merely retard the growth of population in the State; it could bring upon them no danger, nor any new evil, moral or physical.

"But the power of compelling them to receive and to retain among them persons whom the State may deem dangerous to its peace, or who may be tainted with crimes or infectious diseases, or who may be a burden upon its industrious citizens, would subject its domestic concerns and social relations to the power of the federal govern

ment.

"It would require very plain and unambiguous words to convince me that the States had consented thus to place themselves at the feet of the general government; and if this power is granted in regard to voluntary emigrants, it is equally granted in the case of slaves. The grant of power is the same, and in the same words, with respect to migration and to importation, with the exception of the right to impose a tax upon the latter; and if the States have granted this great power in one case, they have granted it in the other; and every State may be compelled to receive a cargo of slaves from Africa whatever danger it may bring upon the State, and however earnestly it may desire to prevent it. If the word migration is supposed to include voluntary emigrants, it ought at least to be confined to the power granted, and not extended by construction to another power, altogether unlike in its character and consequences, and far more formidable to the States.

"But another clause is relied on by the plaintiff to show that this law is unconstitutional. It is said that passengers are imports, and that this charge is therefore an impost or duty on imports, and prohibited to the States by the second clause of the 10th section of the first article. This objection, as well as others which I have previously noticed, is in direct conflict with decisions heretofore made by this court. The point was directly presented in the case of Milne vs. the city of New-York, 11 Pet., 102, and was there deliberately considered, and the court decided that passengers clearly were not imports. This decision is perfectly in accordance with the definition of the word previously given in the case of Brown vs. Maryland, 12 Wheat., 419. Indeed it not only accords with this definition, but with the long-established and well-settled meaning of the word: for I think it may be safely affirmed, that both in England and this country, the words imports and importation, in statutes, in statistical tables, in official reports, and in public debates, have uniformly been applied to articles of property, and never to passengers voluntarily coming to the country in ships; and in the debates of the convention itself, the words are constantly so used.

"The members of the convention unquestionably used the words they inserted in the constitution in the same sense in which they used them in their debates. It was their object to be understood, and not to mislead; and they ought not to be supposed to have used familiar words in a new and unusual sense. And there is no reason to suppose that they did not use the word 'imports,' when they inserted it in the constitution, in the sense in which it had been familiarly used for ages, and in which it was daily used by themselves. If this court is at liberty to give old words new meanings, when we find them in the constitution, there is no power which may not, by this mode of construction, be conferred on the general government and denied to the States."

He next proceeds to consider the objection, that the money demanded is a tax on the captain of the vessel, who is an instrument of commerce, and that it is therefore a regulation of commerce, which he does as follows:

"Undoubtedly the ship, although engaged in the transportation of passengers, is a vehicle of commerce, and within the power of regulation granted to the general government; and I assent fully to the doctrine upon that subject laid down in the case of Gibbons vs. Ogden. But it has always been held that the power to regulate commerce does not give to congress the power to tax it, nor prohibit

the States from taxing it in their own ports and within their own jurisdiction. The authority of congress to lay taxes upon it is derived from the express grant of power in the 8th section of the 1st article, to lay and collect taxes, duties, imposts and excises, and the inability of the States to tax it arises from the express prohibition contained in the 10th section of the same article.

"This was the construction of the constitution at the time of its adoption, the construction under which the people of the State adopted it, and which has been affirmed in the clearest terms by the decisions of this court.

"In the 32d number of the Federalist, before referred to, and several of the preceding numbers, the construction of the constitution as to the taxing power of the general government and of the States is very fully examined, and with all that clearness and ability which everywhere mark the labors of its distinguished authors; and in these numbers, and more especially in the one above mentioned, the construction above stated is given to the constitution, and supported by the most conclusive arguments. It maintains that no right of taxation which the States had previously enjoyed was surrendered, unless expressly prohibited; that it was not impaired by any affirmative grant of power to the general government; that duties on imports were part of the taxing power; and that the States would have had a right, after the adoption of the constitution, to lay duties on imports and exports if they had not been expressly prohibited "

"The grant of the power to regulate commerce, therefore, did not, in the opinion of Mr. Hamilton, Mr. Madison, and Mr. Jay, prohibit the States from laying imposts and duties upon imports brought into their own territories. It did not apply to the right of taxation in either sovereignty, the taxing power being a distinct and separate power from the regulation of commerce, and the right of taxation in the States remaining over every subject where it before existed, with the exception only of those expressly prohibited.

"This construction, as given by the Federalist, was recognized as the true one, and affirmed by this court in the case of Gibbons `rs. Ogden, 9 Wheat., 201. The passage upon this subject is so clear and forcible, that I quote the words used in the opinion of the court, which was delivered by Chief Justice Marshall:

“In a separate clause,' he says, 'of the enumeration, the power to regulate commerce is given, as being entirely distinct from the right to levy taxes and imposts, and as being a new power, not before conferred. The constitution, then, considers those powers as substantive and distinct from each other, and so places them in the enu