Each may lay a tax on the same

inconsistent with that of the states. property, without interfering with the action of the other; for taxation is but taking small portions from the mass of property, which is susceptible of almost infinite division. In imposing taxes for state purposes, a state is not doing what congress is empowered to do. Congress is not empowered to tax for those purposes, which are within the exclusive province of the states. When, then, each government exercises the power of taxation, neither is exercising the power of the other. But when a state proceeds to regulate commerce with foreign. nations, or among the several states, it is exercising the very power which is granted to congress, and is doing the very thing which congress is authorized to do. There is no analogy, then, between the power of taxation and the power of regulating commerce.1

§ 1069. Nor can any power be inferred in the states to regulate commerce, from other clauses in the constitution or the acknowledged rights exercised by the states. The constitution has prohibited the states from laying any impost or duty on imports or exports; but this does not admit that the state might otherwise have exercised the power, as a regulation of commerce. The laying of such imposts and duties may be, and indeed often is used, as a mere regulation of commerce, by governments possessing that power.2 But the laying of such imposts and duties is as certainly, and more usually, a right exercised as a part of the power to lay taxes, and with this latter power the states are clearly entrusted. So that the prohibition is an exception from the acknowledged power of the state to lay taxes, and not from the questionable power to regulate commerce. Indeed, the constitution treats these as distinct and independent powers. The same remarks apply to a duty on tonnage.3

§ 1070. Nor do the acknowledged powers of the states over certain subjects, having a connection with commerce, in any degree impugn this reasoning. These powers are entirely distinct in their nature from that to regulate commerce; and though the same means may be

1 Gibbons v. Ogden, 9 Wheaton's R. 199, 200.

29 Wheaton's R. 201, 202; 1 Jefferson's Corresp. 7; The Federalist, No. 56; 12 Wheaton's R. 446, 447. [It is said in 9 Wheat. 201, 202, by Mr. Ch. Justice Marshall for the court, that the power to lay duties is treated in the constitution as belonging to the power of taxation and a branch thereof, and not of the powers to regulate commerce. Query? See post, § 1072, 1077, 1080, 1087, 1088.]

39 Wheaton's R. 201, 202.

resorted to, for the purpose of carrying each of these powers into effect, this by no just reasoning furnishes any ground to assert that they are identical. Among these are inspection laws, health laws, laws regulating turnpikes, roads, and ferries, all of which, when exercised by a state, are legitimate, arising from the general powers belonging to it, unless so far as they conflict with the powers delegated to congress.2 They are not so much regulations of commerce as of police; and may truly be said to belong, if at all to commerce, to that which is purely internal. The pilotage laws of the states may fall under the same description. But they have been adopted by congress, and, without question, are controllable by it.3

$1071. The reasoning, by which the power given to congress to regulate commerce is maintained to be exclusive, has not been of late seriously controverted; and it seems to have the cheerful acquiescence of the learned tribunals of a particular state, one of whose acts brought it first under judicial examination.4

§ 1072. The power to congress, then, being exclusive, no state is at liberty to pass any laws imposing a tax upon importers, importing goods from foreign countries, or from other states. It is wholly immaterial, whether the tax be laid on the goods imported or on the person of the importer. In each case it is a restriction of the right of commerce, not conceded to the states. As the power of congress to regulate commerce reaches the interior of a state, it might be capable of authorizing the sale of the articles which it introduces. Commerce is intercourse; and one of its most ordinary ingredients is traffic. It is inconceivable that the power to authorize traffic, when given in the most comprehensive terms, with the intent that its efficacy should be complete, should cease at the point when its continuance is indispensable to its value. To what purpose should the power to allow importa

1 See Corfield v. Cargill, 4 Wash. Cir. R. 371, 379, &c.

29 Wheaton's R. 203 to 207, 209; post, § 1071; City of New York v. Miln, 11 Peters, S. C. R. 103.

39 Wheaton's R. 207, 208, 209.

41 Kent's Comm. Lect. 19, p. 404, 410, 411. See also Rawle on the Constitution, ch. 9, p. 81 to 84; Sergeant on Const. ch. 28, p. 291, 292. There is a very able and candid review of the whole subject, by Mr. Chancellor Kent, in his excellent commentaries. 1 Kent's Comm. Lect. 19, p. 404. I gladly avail myself of this, as well as of all other occasions, to recommend his learned labors to those who seek to study the law, or the constitution, with a liberal and enlightened spirit.

9 Wheaton's R. 197 to 204.

tion be given, unaccompanied with the power to authorize the sale of the thing imported? Sale is the object of importation; and it is an essential ingredient of that intercourse of which importation constitutes a part. As congress have the right to authorize importation, they must have a right to authorize the importer to sell. What would be the language of a foreign government, which should be informed that its merchants, after importation, were forbidden to sell the merchandise imported? What answer could the United States give to the complaints and just reproaches, to which such extraordinary conduct would expose them? No apology could be received or offered. Such a state of things would annihilate commerce. It is no answer that the tax may be moderate; for, if the power exists in the states, it may be carried to any extent they may choose. If it does not exist, every exercise of it is, pro tanto, a violation of the power of congress to regulate commerce.1

[§ 1072 a. The question, whether the power of congress to regulate commerce is exclusive, so as to operate as a prohibition to all state legislation on the subject, or whether it is only exclusive and paramount in cases where its power has been exercised, has been discussed with much oarnostness in several cases which have lately come before the supreme court of the United States for adjudication. This question was first incidentally considered in the case of The City of New York v. Miln,2 where the main question was, whether a certain act of the state of New York concerning "passengers of vessels coming to the port of New York," was a regulation of commerce or of police. This act required the master of any ship arriving from a foreign port, or from one of the other states, within twenty-four hours after its arrival, to report to the mayor in writing, on oath or affirmation, the name, place of birth, last legal settlement, age, and occupation, of every passenger brought in such ship to the city of New York, or permitted to land at any place, or put on board any other ship with an intention of proceeding to the city, under a penalty of seventy-five dollars for every passenger, to be paid by the master, owner, or consignee. It further required each master to give bond to the mayor, with two sureties, in

1 Brown v. State of Maryland, 12 Wheaton's R. 419, 445 to 447; 9 Wheaton's R 197, &c. Mr. Justice Thompson dissented from this doctrine, as will be seen in his opinion in 12 Wheaton's R. 449, &c.

2 11 Peters Sup. Ct. R. 102.

a sum not exceeding three hundred dollars, for each passenger not a citizen of the United States, to save harmless the mayor, &c., and the overseers of the poor from all expenses and charges, which might be incurred in the maintenance and support of such passenger, under a penalty of five hundred dollars. It further provided, that the master or owner should, on the order of the mayor, be compelled, under a heavy penalty, to remove to the place of his last settlement, any passenger, being a citizen of the United States, who should be likely to become chargeable on the city. The majority of the court held, that this act was not to be considered as a regulation of commerce, but merely of police, and that, as the jurisdiction over matters of internal police had never been surrendered by the states, any legislation by them upon such matters was a constitutional exercise of these powers. The grounds taken to support this decision were, that both the end to be attained and the means used were within the powers not surrendered to the federal government, the end being to prevent the state from being burthened by an influx of foreigners and paupers, the means bearing a just, natural, and appropriate relation to that end. That "whilst a state is acting within the legitimate scope of its power as to the end to be attained, it may use any means appropriate to that ond, although they 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 to the limitation, that, in the event of collision, the law of the state must yield to that of congress. That here there was no such collision, the laws of congress only affecting the passengers while on their voyage, and these state laws only affecting them after the completion of the voyage." The court goes on to say, we "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 not 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 surrendered 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 multifarious 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; whether 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 endeavor 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.

"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.

"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