borne by the class of persons who make them necessary; that is to say, the passengers from foreign ports. It is from them, as a class, that the danger is feared, and they occasion the expenditure. They are all entitled to share in the relief which is provided, and the State cannot foresee which of them will require it, and which will not. It is provided for all that need it, and all should therefore contribute. You must deal with them as you do with ships with merchandise and crews arriving from ports where infectious diseases are supposed to exist; when, although the crew are in perfect health, and the ship and cargo free from infection, yet the ship-owner must bear the expense of the sanitary precautions which are supposed to be necessary on account of the place from which the vessel comes.

"The State might, it is true, have adopted towards the passengerships the quarantine regulations usually applied to ships with merchandise. It might have directed that the passenger-ships from any foreign port should be anchored in the stream, and the passengers not permitted to land for the period of time deemed prudent. And if this had been done, the ship-owner would have been burdened with the support of his numerous passengers, and his ship detained for days, or even weeks, after the voyage was ended. And if a contagious disease had broken out on the passage, or appeared after the vessel arrived in port, the delay and expense to him would have been still more serious.

"The sanitary measures prescribed by this law are far more favora. ble to the passengers than the ancient regulations, and incomparably more so to the feeble, the sick, and the poor. They are far more favorable, also, and less burdensome to the ship-owner; and no one, I think, can fail to see that the ancient quarantine regulations, when applied to passenger-ships, are altogether unsuited to the present condition of things, to the convenience of trade, and to the enlightened policy which governs our intercourse with foreign nations. The ancient quarantine regulations were introduced when the passenger trade, as a regular occupation, was unknown, and when the intercourse between nations was totally unlike what it is at the present day. And after all, these quarantine regulations are nothing more than the inode in which a nation exercises its power of guarding its citizens from the danger of disease. It was no doubt well suited to the state of the world at the time when it was generally adopted; but can there be any reason why a State may not adopt other sanitary regulations in the place of them, more suitable to the free, speedy and extended intercourse of modern times? Can there be any reason why they should not be made less oppressive to the passenger, and to the ship-owner and mariner, and less embarrassing and injurious to commerce? This is evidently what the New-York law intended to accomplish, and has accomplished, while the law has been permitted to stand. It is no more a regulation of commerce-and, indeed, is far less burdensome and

occasions less interruption to commerce than the ancient quarantine regulations. And I cannot see upon what ground it can be supposed that the constitution of the United States permits a State to use the ancient means of guarding the health of its citizens, and, at the same time, denies to it the power of mitigating its hardships and of adapting its sanitary regulation to the extended and incessant intercourse with foreign nations, and the more enlightened philanthropy of modern times; nor why the State should be denied the privilege of providing for the sick and suffering on shore, instead of leaving them to perish on shipboard. Quarantine regulations are not specific and unalterable powers in a State; they are but the means of executing a power. And certainly other and better means may be adopted in place of them, if they are not prohibited by the constitution of the United States. And if the old mode is constitutional, the one adopted by the law of NewYork must be equally free from objection.”

Then as to the State power of taxation:

"It is the case of passengers-freemen. It is admitted that they are not exempt from taxation after they are on shore. And the question is, when was the voyage or passage ended? and when did the captain and passengers pass from the jurisdicton and protection of the general government, and enter into that of the State? The act of 1819 regulated and prescribed the duties of the ship-owner and captain during the voyage, and until the entry was made at the custom-house and the proper list delivered. It makes no further provision in relation to any of the parties. The voyage was evidently regarded as then completed, and the captain and passengers as passing from the protection and regulations of congress into the protection and exclusive jurisdiction of the State. The passengers were no longer under the control of the captain. They might have landed where and when they pleased, if the State law permitted it, and the captain had no right to prevent them. If he attempted to do so, there was no law of congress to afford redress or to grant relief. They must have looked for protection to the State law and the State authorities. If a murder had been committed, there was no law of congress to punish it. The personal safety of the passengers and the captain, and their rights of property, were exclusively under the jurisdiction and protection of the State. If the right of taxation did not exist in this case, in return for the protection afforded, it is, I think, a new exception to the general rule upon that subject. For all the parties, the captain as well as the passengers, were as entirely dependent for the protection of their rights upon the State authorities, as if they were dwelling in a house in one of its cities; and I cannot see why they should not be equally liable to be taxed, when no clause can be found in the constitution of the United States which prohi. bits it."

In a note appended to the opinion, he notices the argument, that commerce means intercourse, and the power of congress to regulate commerce includes intercourse, in the following manner :

"It has always been admitted, in the discussions upon this clause of the constitution, that the power to regulate commerce includes navigation, and ships, and crews, because they are the ordinary means of commercial intercourse; and if it is intended by the introduction of the word 'intercourse,' merely to say that the power to regulate commerce includes in it navigation, and the vehicles and instruments of commerce, it leaves the question in dispute precisely where it stood before, and requires no further answer.

"But if intercourse means something more than commerce, and would give to the general government a wider range of power over the States, no one, I am sure, will claim for this court the power to interpolate it, or to construe the constitution as if it was found there. And if, under the authority to regulate commerce, congress cannot compel the States to admit or reject aliens, or other persons coming from foreign ports, but would possess the power if the word 'intercourse' is, by construction, substituted in its place, every one will admit that a construction which substitutes a word of larger meaning than the word used in the constitution could not be justified or defended upon any principle of judicial authority.

"The introduction of the word 'intercourse,' therefore, comes to this it means nothing more than the word 'commerce,' it is merely the addition of a word without changing the argument. But if it is a word of larger meaning, it is sufficient to say that then this court cannot substitute it for the word of more limited meaning contained in the constitution. In either view, therefore, of the meaning to be attached to this word'intercourse,' it can form no foundation for an argument to support the power now claimed for the general government.

"And if commerce with foreign nations could be construed to include the intercourse of persons, and to embrace the travellers and passengers as well as merchandise and trade, congress would also have the power to regulate this intercourse between the several States, and to exercise this power of regulation over citizens passing from one State to another. It of course needs no argument to prove that such a power over the intercourse of persons passing from one State to another is not granted to the federal government by the power to regulate commerce among the several States; yet, if commerce does not mean the intercourse of persons between the several States, and does not embrace passengers or travellers from one State to another, it necessarily follows that the same word does not include passengers or travellers from foreign countries. And if congress, under its power to regulate commerce with foreign nations, possesses the power claimed for it in the decision of this case, the same course of reasoning and the same

rule of construction (by substituting intercourse for commerce) would give the general government the same power over the intercourse of persons between different States."

The opinion of Mr. Justice Daniel, which comes next, is decidedly superior, both in matter and manner, to that of any of the majority judges; but it wants the simplicity of style suitable to such a production. In this respect it presents a striking contrast to that of the chief justice. For example, the chief justice is content to express his dissent in these few and plain words:

"I do not concur in the judgment of the court in these two cases, and proceed to state the grounds on which I dissent."

But Mr. Justice Daniel makes the same announcement in the following more solemn and lofty style :

"Of the decision of the court just given, a solemn sense of duty compels me to declare my disapproval. Impressed as I am with the mischiefs with which that decision is believed to be fraught-trampling down, as to me it seems to do, some of the strongest defences of the safety and independence of the States of this confederacy--it would be worse than a fault in me could I contemplate the invasion in silence. I am unable to suppress my alarm at the approach of power claimed to be uncontrollable and unlimited. My objections to the decision of the court, and the grounds on which it is rested, both at the bar and by the court, will be exemplified in detail in considering the case of Smith vs. Turner."

His opinion contains no important views of the question which we have not already seen in that of the chief justice. We select one passage as a fair sample of the whole.

"The argument constructed by counsel, and by some of the judges, upon the provisions of the act of congress authorizing the importation of the tools of mechanics, their clothing, &c., free from duties, presents itself to my mind as wanting in logical integrity, and as utterly destructive of positions which those who urge this argument elsewhere maintain. The exemption allowed by congress can correctly be made to signify rothing more than this: that the general government will not levy duties on the private effects of certain classes of persons who may be admitted into the country. But, by any rule of common sense, can this exemption be made to signify permission to those persons to land, at all events, in the States? It asserts or implies no such thing; much less does it convey a command, or the power to issue a command to the States to admit them. Must not this benefit of exemption from

duties be always in enjoyment subordinate to, and dependent upon, the right of the owner of the property exempted to enter the country? This is inevitable, unless it be contended that a mere forbearance to exact duties on the property is identical with ordering the admission of its owner, thus making the man the incident of the property, and not the property that of the man-a reductio in absurdum which cannot be escaped from by those who deduce the right of admission from the act of Congress. But are those who assume this ground aware that it is destructive of other positions, which they themselves have not only conceded but insisted upon? They have admitted the power or right of self-preservation in the States, and, as a means of securing this right, the power of excluding felons, convicts, paupers and persons infected; but according to this argument, based upon the acts of congress, and on the treaty stipulation for free access and commorancy, all must be permitted to land and to remain: for these acts of congress and treaty stipulations contain no exceptions in favor of the safety of the States-they are general, and in their terms ride over all such considerations as health, morals, or security, amongst the people of the States. This argument cannot be maintained. The true interpretation of the act of congress referred to is this: Tools, clothing, and personal property of mechanics are goods, chattels, imports, in the known and proper sense of the term 'imports; congress having, under the constitution, the power to impose duties on these, possesses the correlative right of exempting them from duties. This they have done, and nothing beyond this. Congress has not pretended to declare permission to the mechanic, or to any other description of person, directly, to come into the States, because they have no such direct power under the constitution, and cannot assume or exercise it indirectly."

The opinion of Mr. Justice Woodbury fills nearly twice as many pages as the longest of the others. It evinces, in general, sound and wholesome views of the constitution, and a just conception of the nature of our federative system, and in its substance is worthy of the reputation he has acquired for practical ability and industry. He enlarges upon all the topics discussed by the chief justice, and introduces some others, which do not, however, add any thing material to the force of the argument. But it cannot be denied that his method is by no means luminous, and his style is dull, tedious and unimpressive, always careless of rhetoric and sometimes of grammar. The following passage may be taken as no unfavorable sample of the general staple :

"It is a mistaken view to say that the power of a State to exclude