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 limits 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 laboring under an infectious disease.

§ 1072 b. From this decision Mr. Justice Story dissented. He argued, that the power of congress to regulate commerce is exclusive, and not concurrent with the states, and that this doctrine was clearly enunciated in the case of Gibbons v. Ogden;1 that this act of New York is not a mere police law on the subject of paupers, but a regulation of commerce, to prevent paupers, in certain cases, from entering and remaining in the state; and although he fully admitted the power of the states to pass health and quarantine laws, and other police laws of a similar nature, not contravening the acts of congress rightfully passed under their constitutional authority, and to pass poor-laws, and laws to prevent the introduction of paupers into the state, under like qualifications, and even in the exercise of their legitimate authority to use the same means with congress, if the means be suitable to the end, yet it was with this reserve, that those means be not exclusively vested in congress. "A state," he says, "cannot make a regulation of commerce to enforce its health laws, because it is a means withdrawn from its authority. It may be admitted that it is a means adapted to the end; but it is quite a different question whether it be a means within the competency of the state jurisdiction. The states have a right to borrow money; and borrowing by the issue of bills of credit, would certainly be an appropriate means: but we all know, that the emission of bills of credit by a state is expressly prohibited by the constitution. If the power to regulate commerce be exclusive in congress, then there is no difference between an express and an implied prohibition upon the states.

19 Wheat. Sup. Ct. R. 1.

"But how can it be truly said, that the act of New York is not a regulation of commerce? No one can well doubt, that if the same act had been passed by congress, it would have been a regulation of commerce; and in that way, and in that only, would it be a constitutional act of congress. The right of congress to pass such an act has been expressly conceded at the argument. The act of New York purports on its very face to regulate the conduct of masters, and owners, and passengers, in foreign trade, and in foreign ports and places. Suppose the act had required, that the master and owner of ships should make report of all goods taken on board or landed in foreign ports, and of the nature, qualities, and value of such goods; could there be a doubt that it would have been a regulation of commerce? If not, in what essential respect does the requirement of a report of the passengers taken or landed in a foreign port or place, differ from the case put? I profess not to be able to see any. I listened with great attention to the argument, to ascertain upon what ground the act of New York was to be maintained, not to be a regulation of commerce. I confess that I was unable to ascertain any, from the reasoning of either of the learned counsel who spoke for, the plaintiff. Their whole argument on that if it were a regulation

this point seemed to me to amount to this: of commerce, still it might also be deemed a regulation of police, and a part of the system of poor-laws; and therefore justifiable as a means to attain the end. In my judgment, for the reasons already suggested, that is not a just consequence, or a legitimate deduction. If the act is a regulation of commerce, and that subject belongs exclusively to congress; it is a means cut off from the range of state sovereignty and state legislation."

§ 1072 c. In respect to the exclusive power of congress to regulate commerce, he says, "If this were a new question in this court, wholly untouched by doctrine or decision, I should not hesitate to go into a full examination of all the grounds upon which concurrent authority is attempted to be maintained. But in point of fact, the whole argument on this very question, as presented by the learned counsel on the present occasion, was presented by the learned counsel who argued the case of Gibbons v. Ogden, 9 Wheaton, R. 1; and it was then deliberately examined and deemed inadmissible by the court. Mr. Chief Justice Marshall, with his accustomed accuracy and fulness of illustration, reviewed at that time the whole grounds of the controversy; and from that time to the present, the question has been considered (as far as I

know) to be at rest. The power given to congress to regulate commerce with foreign nations, and among the states, has been deemed exclusive, from the nature and objects of the power, and the necessary implications growing out of its exercise. Full power to regulate a particular subject implies the whole power, and leaves no residuum; and a grant of the whole to one, is incompatible with a grant to another of a part. When a state proceeds to regulate commerce with foreign nations, or among the states, it is doing the very thing which congress is authorized to do; Gibbons v. Ogden, 9 Wheat. R. 198, 199. And it has been remarked, with great cogency and accuracy, that the regulation of a subject indicates and designates the entire result; applying to those parts which remain as they were, as well as to those which are altered. It produces a uniform whole, which is as much disturbed and deranged by changing what the regulating power designs to leave untouched, as that upon which it has operated. Gibbons v. Ogden, 9 Wheat. R. 209.

"This last suggestion is peculiarly important in the present case; for congress has, by the act of the 2d of March, 1819, ch. 170, regulated passenger ships and vessels. Subject to the regulations therein provided, passengers may be brought into the United States from foreign ports. These regulations, being all which congress have chosen to enact, amount, upon the reasoning already stated, to a complete exercise of its power over the whole subject, as well in what is omitted as in what is provided for. Unless, then, we are prepared to say, that wherever congress has legislated upon this subject, clearly within its constitutional authority, and made all such regulations as in its own. judgment and discretion were deemed expedient; the states may step in and supply all other regulations which they may deem expedient, as complementary to those of congress, thus subjecting all our trade, commerce and navigation, and intercourse with foreign nations, to the double operations of distinct and independent sovereignties. It seems to me impossible to maintain the doctrine, that the states have a concurrent jurisdiction with congress on the regulation of commerce, whether congress has or has not legislated upon the subject; but a fortiori when it has legislated.

"There is another consideration, which ought not to be overlooked in discussing this subject. It is, that congress, by its legislation, has in fact authorized not only the transportation but the introduction of passengers into the country. The act of New York imposes restraints

and burthens upon this right of transportation and introduction. It goes even further, and authorizes the removal of passengers under certain circumstances out of the state, and at the expense of the master and owner in whose ship they have been introduced; and this, though they are citizens of the United States, and were brought from other states. Now, if this act be constitutional to this extent, it will justify the states in regulating, controlling, and, in effect, interdicting the transportation of passengers from one state to another in steamboats and packets. They may levy a tax upon all such passengers; they may require bonds from the master that no such passengers shall become chargeable to the state; they may require such passengers to give bonds that they shall not become so chargeable; they may authorize the immediate removal of such passengers back to the place from which they came. These would be most burthensome and inconvenient regulations respecting passengers, and would entirely defeat the object of congress in licensing the trade or business. And yet, if the argument which we have heard be well founded, it is a power strictly within the authority of the states, and may be exerted at the pleasure of all or any of them, to the ruin and perhaps annihilation of our passenger navigation. It is no answer to the objection to say, that the states will have too much wisdom and prudence to exercise the authority to so great an extent. Laws were actually passed of a retaliatory nature by the states of New York, New Jersey, and Connecticut, during the steamboat controversy, which threatened the safety and security of the union; and demonstrated the necessity, that the power to regulate commerce among the states should be exclusive in the union, in order to prevent the most injurious restraints upon it.

§ 1072 d. In closing his opinion, he says: "Such is a brief view of the grounds upon which my judgment is, that the act of New York is unconstitutional and void. In this opinion I have the consolation to know that I had the entire concurrence, upon the same grounds, of that great constitutional jurist, the late Mr. Chief Justice Marshall. Having heard the former arguments, his deliberate opinion was, that the act of New York was unconstitutional; and that the present case fell directly within the principles established in the case of Gibbons v. Ogden, 9 Wheat. R. 1, and Brown v. The State of Maryland, 12 Wheat. R. 419."1

In the case of Groves v. Slaughter, 15 Peters, S. C. R. 503, 510, Mr. Justice McLean and Mr. Justice Baldwin give the full weight of their opinion in favor of the exclusive

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§ 1072 e. Subsequently, in a series of cases arising upon certain statutes of New York and Massachusetts, by which taxes were imposed upon alien passengers coming into those states either from foreign ports or from ports in the United States, the majority of the court seem to have considered the power of congress to regulate commerce as exclusive. Mr. Justice Wayne, in delivering his opinion in these cases, states that "the opinion of Mr. Justice Barbour, (in City of New York v. Miln,) though reported as the opinion of the court, had not at any time the concurrence of a majority of its members, except in this particular, that so much of the act of New York as required the captain of a vessel to report his passengers as the act directs it to be done was a police regulation, and therefore was not unconstitutional or a violation of the power of congress to regulate commerce. But as to all besides in that opinion as to the constitutional power of congress to regulate commerce, -except the disclaimer in the 132d page, that it was not intended to enter into any examination of the question, whether the power to regulate commerce be or be not exclusive in the states, and especially the declaration that persons were not the subjects of commerce, the opinion had not the assent of a majority of the members of this court, nor even that of a majority of the judges who concurred in the judg ment. In the discussion of the case, however, by the judges, the nature and exclusiveness of the power in congress to regulate commerce was much considered. There was a divided mind among us about it. Four of the court being of the opinion, that, according to the constitution and the decisions of this court in Gibbons v. Ogden, and in Brown v. Maryland, the power in congress to regulate commerce was exclusive. Three of them thought otherwise. And to this state of the court is owing the disclaimer in the opinion, already mentioned by me, that the exclusiveness of the power to regulate commerce was not in the case a point for examination." Mr. Chief Justice Taney, however, states that the opinion as delivered by Mr. Justice Barbour had the full assent of all the court except Mr. Justice Story. However this may be, the fact that Mr. Justice Barbour and Mr. Justice McLean, who both sat as judges in that case, distinctly announce their opinion that the power to regulate commerce is exclusively in congress, would

ness of this power of congress to regulate commerce; others of the judges thought the question did not arise in the case. Mr. Ch. Justice Taney considered the power of congress as concurrent with that of the states."