# Smith v. Turner > Supreme Court of the United States · February 18, 1849 · 48 U.S. 283 URL: https://www.frixlaw.com/law-library/cases/9416474 ## Case - **Full name:** George Smith, Plaintiff in Error, v. William Turner, Health-Commissioner of the Port of New York; James Norris, Plaintiff in Error, v. the City of Boston - **Court:** Supreme Court of the United States - **Decided:** February 18, 1849 - **Citations:** 48 U.S. 283; 7 How. 283; 12 L. Ed. 702; 1849 U.S. LEXIS 351 - **Precedential status:** Published - **Opinion:** Concurrence by Citron - **Judges:** McLean, Citron, Wayne, Catron, McEinley, Grier, Taney, Daniel, Nelson, Woodbury - **Cited by:** 252 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9416474 ## How later opinions describe it (automated extraction) - recognizing that the nature of the Federal Union and the constitutional concepts of personal liberty unite to require that all citizens be free to travel throughout the United States uninhabited by statutes, rules, or regulations which unreasonably burden or restrict this move… ## Opinion text CITRON, J. I concur with the foregoing opinion of Mr. Justice Grier. . Mr. Chief Justice TANEY, dissenting. Norris v. City of Boston, and Smith v. Turner. I do not concur in the judgment of the. court in these two cases, and proceed to state the grounds on which I dissent. The constitutionality of the laws of Massachusetts and New York in some respects depends upon the same principles. There are, however, different questions in the two cases, and. I shall make myself better understood by examining separately one of the cases, and then pointing out how far the same reasoning applies to the other, and in-what respect there is a difference between them; and, first, as to the case from Massachusetts. This law meets the vessel after she has arrived in the har-bour, and within the territorial limits of the State, but before the passengers have landed, and while, they are still afloat on navigable water. It requires the. State officer to go on board and examine into the condition of the passengers, and provides that, if any lunatic, idiot, maimed, aged, or infirm person, incompetent, in the opinion of the examining 'officer, to maintain themselves, or who have been paupers in any other country, shall be found on board, such alien passenger shall , not be permitted to land until the master, owner, consigriee, or agent of the vessel shall give bond, with sufficient security, that no such-lunatic or indigent person shall become a city, town, or State charge within ten years from the date of the bond. These provisions are contained in the. first two sections. It is the third section that has given rise to this -controversy, and which *465 enacts that no alien passengers other than those before spoken of shall be permitted to land until the master, owner,. consignee, or agent of the vessel shall pay to the boarding officer the sum of two dollars for each passenger so landing ; the money-thus collected to be appropriated to the support of foreign paupers. This law is a part of the pauper laws of the State, and the provision in question is intended to create a fund for' the support of alien paupers, and to prevent its own eitizens from being burdened with their support. I do not deem it material at this time to inquire whether the sum demanded is a tax or not. Of that question I shall speak hereafter. The character of the transaction and the. meaning of the law cannot be misunderstood. If the alien chooses to remain on board, and to depart .with the ship, or in any other vessel, the captain is not required to pay the money. Its payment is'the condition upon Avhich the State permits, the alien passenger to come on shore and mingle with its citizens, and to rer side among them. • He obtains this privilege from the State by the payment of the money. It is demanded of the captain, and not from every separate passenger, for the convenience of collection. But the burden evidently falls on the passenger; and' he in fact pays if,, either in the enhanced price of his passage, or directly to the captain, before he is allowed to embark for the voyage. The nature of the transaction and the ordinary course of business show that this must be the case; and the present claim, therefore, comes before the court without any equitable. considerations to recommend it, and does not call upon us to restore money to. a party from whom it has been wrongfully exacted. If the plaintiif recovers, he will -^st probably' obtain from the State the money which, he has doubtless already received from the passenger, for the purpose of being, paid to the State; and which, if the State is not entitled to it, ought to be refunded to the passenger. The writ of error, however, brings up nothing for revision here but the constitutionality of the law under which this .money was' demanded. and paid, and that question I proceed to examine. And the first inquiry is, whether, under the Constitution of the United- States, the federal government has the power to compel the several States to receive, and suffer to remain in association with its citizens, every person or class of persons whom it may be the policy or pleasure of the United States to admit. In my. judgment, this question lies at the foundation of the controversy in this case. I do not mean to say that the general government have, by treaty or act of Congress, required the State of Massachusetts to permit thealiens in question to land. *466 I think there is no treaty or act of Congress which can justly be so construed. But it is not necessary to examine that question until we have first inquired whether Congress can lawfully exercise such a power, and whether the States are bound to submit to it. For if the people of the several States of this Union reserved to themselves the power of expelling from their borders any person, or class of persons, whom it might' deem dangerous to its peace, or likely to produce a physical or moral evil among its citizens, then any treaty or law of Congress invading this right, and authorizing the introduction of any person or description of persons against the consent of the State, would be an usurpation of power which this court could neither recognize nor enforce. I had supposed this question not now open to dispute. It was distinctly decided in Holmes v. Jennison, 14 Pet. 540 ; in Groves v. Slaughter, 15 Pet. 449 ; and in Prigg v. The Commonwealth of Pennsylvania, 16 Pet. 539 . If these cases are to stand, the right of the State is undoubted. And it is equally clear, that, if it may remove from among its citizens.any person or description of persons whom it regards as injurious to their welfare, it follows that it • may meet them- at the threshold and prevent them from entering. For it will-hardly be said that the United States may permit them to enter, and compel the State to receive them, and that the State may immediately afterwards expel them. There could be no reason of policy or humanity for compelling the States, by the power of Congress, to imbibe the poison, and then leaving them to find a remedy for it by their own exertions and at their own expense. Certainly no such distinction can be found in the Constitution, and such a division of power would be an inconsistency, not to.say an absurdity, for which I presume no one will contend. ■ If the State has the power to determine whether the persons objected to shall remain in the State in association with its citizens, it must, as an incident inseparably connected with it, have the right also to determine who shall enter. Indeed, in the case of Groves v. Slaughter, the Mississippi constitution prohibited the entry of the objectionable persons, and the opinions of the court throughout treat the exercise of this power as being the same with that of expelling them after they have entered. Neither can this be a concurrent power, and whether it belongs to the general or to the State government, the sovereignty which possesses the right must in its exercise be altogether independent of the other. If the United States have the power, then any legislation by the State in conflict with a treaty or act of Congress would be void. And -if the States possess it, *467 then any act on the subject by the general government, in conflict with the State law, would also be void, and this court bound to disregard it. It must be paramount and absolute in the sovereignty which possesses it. A concurrent and equal power in the United States and the States as to who should and who should- not be permitted to reside in a State, would be a direct conflict of powers repugnant to each other, continually thwarting and defeating its exercise by either, and ‘could result in nothing but disorder and confusion. Again if the State has the right to exclude from its borders any person or persons whom it may regard as dangerous to the safety of its citizens, it must necessarily have the right to decide when and towards whom this power is to be exercised. It is in its nature a discretionary power, to be exercised according to the judgment of the party which possesses it. And it must, therefore, rest with the State to determine whether any particular class or description of persons are likely to produce discontents or insurrection in its territory, or to taint the morals of its citizens, or to bring among them contagious diseases, or the evils and burdens of a numerous pauper population. For if the general government can in any respect, or by any form of legislation, control or re '-ain a State in the exercise of this power, or decide wheth It has been exercised with proper discretion, and towards proper persons, and on proper occasions, then the real and substantial power would be in Congress, and not in the States. In the cases decided in this court,-and herein before referred to, the power of determining who is or is. not dangerous to the interests and well-being of the people of the State has been uniformly admitted to reside in the State. I think it, therefore, to be very clear, both' upon principle and the authority of adjudged cases, that the several States have a right to remove from among their people, arid to prevent from entering the State, any person, or class or description of persons, whom it may deem dangerous or injurious to the interests and welfare of its citizens; and that the State has the exclusive right to determine, in its sound discretion, whether the danger does or does not exist, free from the control of the general government. • This brings me to speak more particularly of the Massachusetts law, now under consideration. It seems that Massachusetts deems the introduction of aliens into the State from foreign countries likely to produce in the State a numerous pauper population, héavily and injuriously burdensome to its citizens. It. would be easy to show, from the public history of the times, that the apprehensions of the State are well founded; that a fearful amount of disease and pauperism is daily brought *468 to our shores in emigrant ships, and that measures of precaution and self-defence have become absolutely necessary on the Atlantic border. But whether this law was necessary or not is not a question for this court; and I forbear, therefore, to discuss its justice and necessity. This, court has no power to inquire whether a State has acted wisely or justly in the- exer- ■ cise of its reserved powers. Massachusétts had the sole and exclusive right to judge for herself whether any eyil.was to be apprehended from the introduction of alien passengers from' foreign countries. And in the exercise of her discretion, she had a right to exclude them if she thought proper to do so. Of course I do not speak of public functionaries or agents, or officers of foreign governments. Undoubtedly no State has a right to interfere with the free ingress of persons' of that description. But there does not appear to have been any such among the aliens who are the subjects of this suit, and no question, therefore, can arise on that score. . Massachusetts, then, having the right to refuse permission to alien passengers from foreign countries to land upon her territory, and the right co reject them as a class or description of persons who may prove injurious to her interests, was she bound to admit or reject them without reserve? Was she bound either to repel them altogether, or to admit them absolutely and unconditionally ? And might she not admit them upon such securities'and conditions as she supposed would protect the. interest of her own citizens, while it enabled the State to extend the offices of humanity and kindness to the sick and helpless stranger ? There is certainly no provision in the Constitution which restrains the power of the State in this respect. And if she may reject altogether, it follows that she may admit upon such terms and conditions as she thinks proper, and it .cannot be material whether the security required be a bond to indemnify or the payment of a certain sum of money. In a case where a party has a discretionary power to forbid or permit an act to be done, as he shall think best for his own interests, he is never bound absolutely and unconditionally to forbid or permit it.' He may always permit it upon such terms'and conditions as he supposes will make the act compatible with his own interests. I know no exception to the rule. An individual may forbid another from digging a ditch through his land to draw off water from the property, of the party who desires the permission. Yet he may allow him to do it upon such conditions and terms as, in his judgment, are sufficient to protect his own property from overflow; and for.this purpose he may either take a bond and security, or he may accept a sum of money in lieu of it, and take upon himself the obliga- *469 tioa of guarding against the danger. The same rule must apply to governments who are charged with 'the . duty of protecting their citizens. Massachusetts has legislated upon this principle. She requires bond and security from one class of aliens, and from another, whom she deems less likely to become, chargeable, she accepts a sum of money, and takes upon herself the obligation of providing a remedy for the apprehended evil. I do not undérstand that the lawfulness of the provision for taking bond, where the emigrants are actual paupers and unable to gain a livelihood, has been controverted. That question, it is true, is_not before us in this case; but the right of the State to protect itself against the burden of supporting those who come to ús from European almshouses seems to be conceded in the argument. Yet there is no provision in the Constitution of the.United States which makes any distinction between different descriptions of aliens, or which reserves the power to the State as to one class and denie's it oyer the other. And if no such distinction is to be found in the Constitution, this court cannot engraft one upon it.. The power of the State sis to these.two classes of aliens must be regarded here as standing upon the same principles. It is in its nature and essence a discretionary power, and if it resides in the State as to the poor and the diseased, it must also reside in it as to all. In both cases the power depends upon the same .principles, and the same construction of the Constitution of the United States,; it results from the discretionary power which resides in a State to determine from what person or description of persons the danger of pauperism is to be apprehended, and to provide the necessary safeguards against it. Most evidently this court cannot supervise the exercise of such a power by the State, nor control or regulate it, nor determine whether the occasion called for it, nor whether the funds raised have been properly administered. This would be substituting the discretion of the court for .the discretionary power reserved to the State. Moreover, if this court should undertake to exercise this-supervisory power, it would take upon itself a duty which it is utterly incapable of discharging; For how could this court ascertain whether the persons classed by the boarding officer of the State as paupers belonged to that denomination or not ? How could it ascertain what had been, the pursuits, habits, and mode of life of every emigrant, and how' far he was liable to lose his health, and become, with a helpless family, a charge-upon, the citizens of the State ? -How could it determine who was sick and who was well ? who was rich and who was' poor ? who was likely to become chargeable and who not ? ■ Yet all *470 this must be done, and must be decided. too upon legal evidence, admissible in a court of justice, if it is determined that the State may provide against the admission of one description of aliens, but not against another; that it may take securities against paupers and persons diseased, but not against those who are in health or have the' means of support; and that this court have the power to supervise the conduct of the State authorities, and to regulate it and determine whether it has been properly exercised or not. I can, therefore, see no ground for the exercise of this power by the government of the United States or any of its tribunals. In my opinion, the clear, established, and safe rule is, that it is ■reserved to the several States, to be exercised "by them according to their own sound discretion, and according to their own views of what their interest and safety require. It is a power of self-preservation, and was never intended to be Surrendered. But it is argued in support of the claim of the plaintiff, that the conveyance of passengers from foreign countries is a branch of commerce, and that' thé provisions of the Massachusetts law, which meet the ship on navigable water and detain her until the'bond is given and the money paid, are a regulation of commerce; and that the grant to Congress of the power to regulate commerce is of itself a prohibition to the States to make any. regulation upon the subject. The construction of this article of the Constitution was fully discussed in the. opinions delivered in the License Cases, reported in 5 Howard. I do not propose to repeat here what I then said, or what was said by other members of the court with whom I agreed. It will appear by the yeport of the case, that five of t-he justices of this court, being a majority of the whole bench, held that the■ grant of' the power to^ Congress was not a prohibition to the States to make such regulations as they deemed necessary, in their own ports and harbours, for the convenience of. trade or the- security of-health; and that such regulations were valid, unless they came in conflict with an act of Congress. After such opinions, judicially delivered, I had supposed that question to be settled, so fa¿ as' any question upon the construction'of the Constitution ought to be regarded as closed by the decision of this court. I do not, however, object to the revision of it, and am quite willing- that it be regarded hereafter as the law of this court, that its opinion upon the construction of the Constitution is always open to discussion .when it is supposed to have been founded- in error, and that its judicial authority should hereafter- depend altogether on the force of the reasoning by which it is supported. Referring to my opinión on that occasion, and the reasoning, by which it is maintained, as showing what I *471 still think upon the subject, I desire now to add to it a reference to the thirty-second number of the Federalist, which shows that the construction given to this clause of the Constitution by a majority of the justices of this court is the same that was given to it at the time of its adoption by the eminent men of the day who were concerned in framing it, and active in supporting it. For in that number it is explicitly affirmed, that, “ notwithstanding the affirmative grants of general authorities, there has been the most pointed care in those cases where it.was deemed improper that the like- authorities should reside in the States, to insert negative clauses prohibiting the exercise of them by the States.” The grant of a general authority to regulate commerce is not, therefore, a prohibition to-the States to make any regulations, concerning it within their own-territorial limits, not in conflict with the regulations of Congress. - But I pass from this objection, which was sufficiently discussed in the License Cases, and come to the next objection founded on the same clause. It is this: that the law in question is a regulation of commerce, and is in conflict with the regulations of Congress, and with treaties, and must yield to the paramount authority over tliis subject-granted to the United States. It is a sufficient answer to this argument-, to say, that no treaty or act of Coiigress has been produced which gives, or attempts to give, to all aliens the right to land in a, State. The act of March 2, 1799, ch. 23,. 5; 5 Howard, 629 .) Such legislation commenced in Massachusetts early after our ancestors arrived at Plymouth. It first empowered the removal of foreign paupers. (See Colonial Charters and. Laws, 1639, p. 173, and 1692, p. 252.) It extended next to the requisition of indemnity from the master, as early as the year 1701. '(See Statute of 13 ffm. III., Ibid. 363.) But while it embraced removals of paupers not settled in the Colony, and ihdemnity required from the master for the support of foreigners iñtro-duced by sea, I do not think it assumed the special form used in the third section of this statute, until the year 1837, after the decision in the case of The City of New York v. Miln, 11 Peters, 107 . .1 shall not, therefore, discuss further the provisions in the second section of the statute * for, at all' events, the requisitions of that section, if not by all admitted to be constitutional, are less objectionable than those of the third ; and if the last can be vindicated, the first must be, and hence the last has constituted the burden of the arguments on both sides. ■ It will be remembered that this third section imposes a condition on landing alien passengers, or, in' 'pther words, levies a toll or fee on the master for landing them, whether then. paupers or not, and that the present action is to recover back the money which has been collected from the master for landing such passengers. ■ After'providing, in the following words, that, “when any vessel shall arrive at any port or harbour within the State, from any port. or. place without the same, with alien passengers on board, the officer or officers whom .the mayor and aldermen of. the city; or the selectmen of the town, where it is proposed to •land such passengers, are hereby authorized and required- to appoint, shall go on board such vessel and examine into the' condition of said passengers.” . The third section of the statute declares that “ no alien passenger, other than those spoken of' in the preceding section, shall be permitted to land, until the master, owner, consignee, or agent of such vessel shall pay to the regularly appointed boarding officer the sum of two dollars for each passenger so landing; and the. money so collected shall be paid into the treasury of the city or town, to be appropriated as the city or town may direct for the support of foreign paupers.” - It is conceded that the sum paid here on account of “ alien passengers ” was demanded of them, when coming in some “ vessel,”, and was collected after she arrived at a “ port or har-bour within the State.” Then, and not till then, the master was required to. pay two dollars for each before landing, “ to be. *520 paid into the treasury of the city or town, to be appropriated as the city or town may direct for the support of foreign paupers.” . By a subsequent law, as the foreign paupers had been made chargeable to the State treasury, the balances' of this fund in the different towns were required to be transferred to that treasury. After careful examination, JLam not satisfied that this exercise of power by a State is incapable of being sustained as a matter of right, under one or all of three positions. 1st. That it is a lawful exercise of the police power of the State to help to maintain its foreign paupers. 2d. If not, that it may be regarded as justified by the sovereign power which ever]’- State possesses to prescribe the conditions on which aliens may enjoy a residence within, and the protection of, the State. . 3d. Or it may be justified under the municipal power of the State to impose taxes within its limits for State purposes. I think, too, that this power has never been ceded to the general government, either expressly or by implication, in any of the grants relied on for that purpose, such as to lay duties on •imports, or to.prohibit the importation of certain persons after the year 1808, or to regulate commerce. Under the first ground of vindication for the State, the whole statute was most probably enacted with the laudable design to obtain some assistance in maintaining humanely the large number of paupers, and persons likely soon to become paupers, coming to our shores by means furnished by the municipal authorities in various parts of Europe. (See 3 Ex. Doc. of 29th Congress, 2d Session, No. 54.) Convicts were likewise sent, or preparing to be sent, hither from some cities on the Continent. (Ibid.) A natural desire, then, would exist, and would appear by some law, to obtain, first, indemnity against the support of emigrants actually paupers, and likely at once to become chargeable ; and, secondly,-funds to maintain such as, though not actually paupers, would probably become so, from this class of aliens. It is due to the cause of humanity, as well as the public economy of the State, that-..the maintenance of. paupers, whether of foreign or domestic origin, should be well provided for. Instead of being whipped or carted back to their places of abode or settlement, as was- once the practice in England and this -country in respect to them; or, if aliens, instead of being reshipped over a desolate waste of ocean, they axe to be treated with kindness and relieved or maintained. But still, if feasible, it should, in justice, , be at the *521 expense of those introducing them, and introducing the evils which may attend on them. This seems to. have been the attempt in this statute, and as such was a matter of legitimate police in relation to paupers. , But those persons affected by the third section not being at the time actual paupers, but merely alien passengers, the expediency or right to tax the master for landing them does not seem so clear, in a police view, as it is to exact indemnity against the support of those already paupers. Yet it is "hot whollyAvithout good reasons, so far as regards the master or owner who makes a profit by-bringing into a State persons having no prior rights there, and likely in time to add something to its fiscal burdens and the number of its unproductive inhabitants.. He who causes this danger, and is the willing instrument in it, and profits by it, cannot, in these views, object to the condition or tax imposed by the State, who may not consider the benefits likely to arise from such a population a full counterbalance to all the anticipated disadvantages and contingencies. But the aspect of the case is somewhat different, looking at the tax as falling wholly on the passenger. It may not be untrue) generally, that some portion of a burden like this rests eventually on the passenger, rather than the master or owner. (Neil v. State of Ohio, 3 Howard, 741 -743.) Yet it does not always; and it is the master, and the owners through him, who complain in the present action, and not the passengers; jf it fell on the latter alone, they would be likely, not only to complain, but to go in vessels to other States where onerous conditions had not been imposed. Supposing, however, the burden in fact to light on them, it is in some, though a less degree, and in a different-view, as a matter of, right, to be vindicated. Were its expediency álone the question before us, some, and among them myself, would be inclined to doubt as to the expediency of such a tax on alien passengers in general, not paupers or convicts. Whatever may be their religion, whether Gatholic or Protestant, or their occupation, whether laborers, mechanics, or farmers, the majority of them are believed to be useful additions to the population of the New World, and since, as weii as before our Revolution, have deserved encouragement in their immigration by easy terms of naturalization, of voting, of holding office, and all the political and civil privileges which their industry and patriotism have in so many instances shown to be usefully bestowed. (See Declaration of Independence ; Naturalization Law; 1 Lloyd’s Debates, Gales and Seaton’s ed., p. 1147; Taylor v. Carpenter, 2 Woodbury & Minot.) If a design existed in any statute to thwart this policy, or if *522 such were its necessary consequence, the measure would be of very questionable expediency. But the makers of this law. may have' had no such design, and such does- not seem .to be ■the necessary, consequence of it, as large numbers of emigrants still continue to arrive in Massachusetts when they would be likely to ship for ports in other States where no such law exists, if this operated on them as a discouragement, and like (Jther taxes when felt, of when high, had become in some degree prohibitory. . The conduct of the State, too, in this measure, as a matter of rightr is the oply question to he decided by us, and may be a’ very different one from its expediency. Every sovereign State possesses the right .to decide this matter of expediency for itself, provided it has the power to control or govern the subject. Our inquiry, therefore, relates merely to that power or right in a State ; and the grbdnd now under consideration to support the exercise of it is her authority to prescribe terms, in a police view, to the entry into'her boundaries of persons who are likely to become .chargeable as paupers, and who are aliens. In this view, as connected with hér police over pauperism, and as a question of mere right, it may be fairly.done by imposing terms which,, though incidentally making .it more expensive for aliens to come here, are designed to maintain such of them and. of their class as are likely, iri many instances,, ere long to become paupers in a strange country, and usually without- sufficient means for support in case either of sickness, or áccident, or reverses in business. So it is not without justification that a class of passengers from whom much expense arises in supporting paupers should, though not at that moment chargeable, advance something for this purpose- at a time when they are, able to contribute, and when alone it can with certainty be collected. (See New York v. Miln, 11 Peters, 156 .) When this is done in a .law providing against the increase of pauperism, and seems legitimately to be connected with the' ' subject, and when the sum required of the master- or passenger is not disproportionate to' the ordinary charge, there appears no reason to regard it as any measure except what it professes to be,.— one connected with the State police as to alien passengers, one connected with the .support of paupers, and- one designed neither to regulate commerce nor be a source of revr enue for general purposes. ( 5 Howard, 626 .) The tax is now transferred to the State treasury, when.collected, for the reason that the support of foreign paupers is transferred there; and this accords with an honest design to collect the money only lor that object.' *523 ■ The last year, so fruitful in immigration and its contagions diseases of ship-fever arid the terrific cholera, and the death of so many from the. former, as well as the. extraordinary expense consequent from these causes, furnish a strong illustration that the terms required are neither excessive nor inappropriate. There are many other reasons showing , that this is legitimately a police measure, and, as such,-competent for the State to adopt. It respects the' character of those pérsons to come within the limits of the.. State, —- it looks to the benefits and burdens deemed likely to be connected with their presence, — it regards the privileges they .may rightfully claim of relief, whenever sick or infirm, though on shipboard, if within the boundaries of the State, — it has an eye to the protection they will humanely receive if merely in transitu through the State to other governments, and the burdens which, in case of disease or accidents, without much means, they may thus throw upon the State. And the fund collected is expressly and wholly applied, after deducting the expenses óf its collection, to “ the support of foreign paupers.” A police measure, in common parlance, ofteh relates to something connected with public morals; and in that limited view would still embrace the subject of pauperism, as this court held in 16 Peters, 625 . But in law, the word police is much broader, and includes all legislation for' the internal policy of a. State. (4 BL Coin., ch. 13.) The police of the ocean belongs to .Congress and the admiralty powers of the general government; but not the police of the land or. of harbours. (Waring v. Clarke, 5 Howard, 471 .) Nor is it any less a police measure because money, rather than a bond of indemnity, is required as a condition of admission to protection and privileges. ’The payment of money is sometimes imposed in the nature of a toll or license fee, but it is still a matter of police. It is sometimes demanded in the nature of charges to cover actual or anticipated expenses. Such is the case with, all quarantine charges. Substantially, too, it is demanded under the indemnity given by the second section, if the person becomes chargeable; and if that be justifiable, so must be this ; the fact that one is contingent and the other absolute cannot affect their constitutionality. Neither is it of consequence that the charge might be defrayed- otherwise, if the State pleased, as from other taxes or other sources. This is a matter entirely discretionary with the State. This might - be done with respect to quarantine expenses or pilotage of vessels ; yet the State, being the sole judge of what is most expedient in respect to this, can legally impose it on the vessel, or *524 master, or passengers, rather than on others, unless clearly forbidden by the Federal Constitution. And it can he none the less a police measure than is a quarantine charge, because the master or owner is required to pay it, or even the passengers, rather than the other people of the State by a general tax. ■ Even to exclude paupers entirely has been held to be a police measure, justifiable in a State. (Prigg v. Pennsylvania, 16 Peters, 625 ; 5 Howard, 629 .) Why, then, is not the milder measure of a fee or tax justifiable in respect to those alien passengers considered likely to become paupers, and to be applied solely to the support of those who do become chargeable from that class ? And why is not this as much a police ‘measure as the other ? If such measures must be admitted to be local, are . of State cognizance, belong to State interests,, they clearly are among State rights. Viewed as a mere police regulation, then, this statute does not conflict with any constitutional provision. Measures which are legitimately of a police character are not pretended to be ceded anywhere iii the Constitution to the general government in express terms; and as little can it be argued that they are impliedly to be considered as ceded, if they be honestly and truly police measures. Hence,, in all the decisions of this tribunal on the powers granted to the general government, either expressly or by implication, measures of that character have been regarded as 'not properly to be included. (License Cases, 5 Howard, 624 ; Baldwin’s Views, 184, 188; cases cited in The United States v. New Bedford Bridge, 1 Woodb. & Min. 423.) Thus viewed, the case also comes clearly within the principles settled in New York v. Miln, 11 Peters, 102 , and is fortified by the views in the License Cases, 5 Howard, 504 . The fact that the police regulation in the case of Miln was enforced by a penalty instead of a toll, and in the License Cases by a prohibition' at times, as well as a fee, does not alter the principle, unless the mode of doing it in the present case should be found, on further examination, before closing, to be forbidden to the States. But if this justification should fail, there is anottier favorable view of legislation such as that of the third section of the statute of Massachusetts, which has already been suggested, and which is so important as to deserve a separate consideration. It presents a vindication for it different from that of a-'mere police regulation, connected with the introduction or support of aliens, who are or may afterwards become paupers, and-results from the po.wer of every sovereign State to impose such' terms as she pleases on the admission or continuance of for *525 eigners within her borders. If this power can be shown to exist, and it is in its nature and character a police power also, then we have already demonstrated that the States can rightfully*continue to exercise, it. But if it be not such a power, and hence cannot be ranked under that title and enjoy the benefit of the decisions exémpting police powers from control by the general government, yet if it exists as a municipal rather than a police power, and has been constantly exercised by the States, they cannot be considered as not entitled to it, unless they have clearly ceded it to Congress in some form or other. First, then, as to its existence. The best writers on national law, as well as our own decisions, show that this power of excluding emigrants exists in all states which are sovereign. (Vattel, B. 1, ch. 19, §. 231; 5 Howard, 525 , 629; New York v. Miln, 11 Peters, 142 ; Prigg v. Pennsylvania, 16 Peters, 625 ; and Holmes v. Jennison, 14 Peters, 565 .) Those coming may be voluntary emigrants from other nations, or. travelling absentees, or refugees in revolutions, party exiles, compulsory victims of power, or they may consist of cargoes of shackled slaves, or large bands of convicts, or brigands, or persons with incendiary purposes, or imbecile paupers, or those suffering from infectious diseases, or fanatics with principles and designs more dangerous than either, or under circumstances of great ignorance, as liberated serfs, likely at once, or soon, to make them a serious burden in their support as paupers,' and a contamination of public morals. There can be no doubt, on principles of national law, of the right to prevent the entry of these, either absolutely or on such conditions as the State may deem it prudent to impose. In this view, a condition of' the kind here imposed, on admission to land and enjoy various privileges, is not so unreasonable, and finds vindication in the principles of public law the world over, (Vattel, B. 1, ch. 19, §§ 219, 231, and B. 2, ch. 7, §§ 93, 94.) In this aspect it may be justified as to the passengers, on the ground of protection and privileges sought by them in the State, either permanently or transiently, and the power of the State to impose conditions before and while yielding it. Wheu we speak here or elsewhere of the right of a State to decide and regulate who shall be its citizens, and on what terms, we mean, of course, subject to airy restraint on her power which she herself has granted to the general government, and which, instead of overlooking, we intend to examine with care before closing.' It having been, then, both in Europe and America, a matter of municipal regulation whether aliens shall or shall not 'reside in any particular state, or even cross its borders, it follows *526 that, if a sovereign' state pleases,, it may, as a matter of clear right, exclude them entirely, or only, when paupers or convicts, (Baldwin’s Views, 193, 194,) or only when slaves, or, what is still-more common in America, in Free States as well as Slave States, exclude colored emigrants, though free. As further proof and illustration that this power exists in the States, and has never been parted with, it was early exercised by Virginia as to others than paupers, (1 Bl. Com., by Tucker, pt. 2, App., p. 33,) and it is now exercised, in one form or another, as to various persons, by more than half the States of the Union. ( 11 Peters, 142 ; 15 ib. 516; 16 ib. 625; 1 Brockenbrough, 434; 14 Peters, 568 ; 5 Howard, 629 .) Even the old Congress, September 16th, 1788, recommended to the States to pass laws excluding convicts; and they did this, though after the new Constitution was adopted, and that .fact announced to the country. “Resolved, That it. be, and it is hereby, recommended to the several States to pass proper laws, for preventing the transportation of convicted malefactors from foreign countries into the United States.” (Journal of Congress for 1788,’p. 867.) . But the principle goes further, and extends to the right to exclude paupers, as well as convicts, by the States (Baldwin’s Views, 188, 193, 194); and. Mr. Justice Story, in the case of New York v. Miln, 11 Peters, 56 , says as to the States,— “ I admit that they have a right to pass poor-laws, and laws to prevent the introduction of paupers into the States, under like qualifications.” Many of the States also exercised this power, not only during the Revolution; but after peace ; and Massachusetts especially did, forbidding the return of refugees, by a law in 1783, ch. 69. Several of the States had done the same as to refugees. (See Federalist, No. 42.) The first naturalization laws by Congress recognized this old right in the States, and expressly provided that such persons could not become naturalized without the. special consent of those States which had prohibited their return. Thus in the first act: — “ Provided, also, that no person heretofore proscribed by any State shall.be admitted a citizen as aforesaid, except by an act of the' legislature of the State in which such person was proscribed.” .(March 26, 1790, 1 Stat. at Large, 104. See a similar proviso to the third section of' the act of 29th January, 1795, I Stat. at Large, 415.) The power given to Congress, as to naturalization generally, does not conflict with this question of taxing or excluding alien passengers, as acts of náturalization apply to those aliens only who have already resided here from two to five years, and not *527 to aliens not resident here at all, or not so long. (See acts of 1790, 1795, and 1800.) And it is not a little remarkable, in proof that this power of exclusion still remains in the States rightfully, that while, as before stated, it has been exercised by various. States in the Union, — some as to paupers, some as to convicts, some as to refugees, some as to slaves, and some as to free blacks, — it never has been exercised by the general government as to mere aliens, not enemies, except so far as included in wbat are called the Alien and Sedition Laws of 1798. By the former, being “ An act concerning aliens,” passed June 15th, 1798, (1 Stat. at Large, 571,) power was assumed by the general government, in time of peace, to remove or expel them from the country ; and that act, no less than the latter,-passed about a month after, (Ibid. 596,) was .generally denounced as unconstitutional, and suffered to expire without renewal; on the ground, among others assigned for it, that, if such a power existed at' all, it was,in the States, and not in the general government, nnless under the war power, and then against alien enemies alone. (4 Elliot’s Deb. 581, 582., 586 ; Virginia Resolutions of 1798.) It deserves special notice, too, that, when it was exercised on- another occasion by the general government, not against aliens as such, but slaves imported from abroad, it was in aid of State laws passed before 1808, and in subordination to them, The only act óf.Congress on this subject before 1808 expressly recognized the power of the State alone then to prohibit the introduction or importation “ of any negro, mulatto,, or other person of color,” and punished it only where the States had. (See act of Feb. 28, 1803, 2 Stat. at Large, 205.) In further illustration of this recognition and cooperation with the States, it provided, in the third section, that all officers of the United States should “ notice and be governed by the provisions of the laws now existing in the several States, prohibiting the admission or importation of any negro, mulatto, or other person of color as aforesaid; and they are hereby enjoined vigilantly to-carry into effect said laws,” i. e. the laws of the States. (See 1 Broekenbrough, 432.) The act of March 2d, 1S07, forbidding the bringing in of slaves, (2 Stat. at Large, 426,) was to take effect on the 1st of . January, 1808, and was thus manifestly intended to carry into operation the admitted power of prohibition by Congress, after that date, of certain persons contemplated in the ninth section of the first article, and as a branch of trade or commerce which Congress, in other parts of the Constitution, was empowered to regulate. That act was aimed solely at the foreign slave- *528 trade, and not at the bringing in of any other persons than slaves, and not as if Congress supposed that, under the ninth section, it was contemplated to give it power, or recognize its power, over any thing, but the foreign slave-trade. But of this more hereafter. ' It will be seen also in. this, that the power of each State to forbid the foreign slave-trade was expressly recognized as existing since, no less than before, 1808, being regarded as a concurrent power, and that by this section no authority was conferred on Congress over the domestic slave-trade, either before or since 1808, If the old Congress did not suppose it was right and proper for the States to act in this way on the introduction of aliens, after the new Constitution went into operation, why did they, by their resolution of 1787, recommend to the States to forbid the introduction of convicts from abroad, rather than recommend it to be done by Congress under the new Constitution ? It is on this principle that a State has a right, if it pleases, to remove foreign criminals from within its limits, or allow them to be removed by others. (Holmes v. Jennison, 14 Peters, 568 .) Though the obligation to do so is, to be sure, an imperfect one, of the performance of which she is judge, and sole judge, till Congress make some stipulation with foreign powers as to their surrender ( 11 Peters, 391 ); and if States do not surrender this right of affixing conditions to their ingress, the police authorities of Europe will proceed still further to inundate them with actual convicts and paupers, however mitigated the evil may be at times by the voluntary immigration with the rest of many of the enterprising, industrious, and talented. But if the right be carried beyond this, and be exercised with a view to exclude rival artisans, or laborers, or to shut out all foreigners, though persecuted and unfortunate, from mere naked prejudice, or with a view to thwart any conjectural policy of the general government, this course, as before suggested, would be open to much just criticism. Again : considering the power to forbid as existing absolutely in a State, it is for the State where the power resides to decide on what is sufficient, cause for it, — whether municipal or economical, sickness or crime ; as, for example,"danger of pauperism, danger to health, danger to morals, danger to property, danger to public principles by revolutions and change of government, or danger to religion. This power over the person is much less than that exercised over ships and merchandise under State quarantine laws, though the general government regulates, for duties and commerce, the ships and their *529 ■ cargoes. If the power be clear, however others may differ as to the’ expediency of the exercise of it as to particular classes or in a particular form, this cannot impair the power. It is well considered, also, that if the power to forbid or expel exists, the power to impose conditions of admission is included as an incident or subordinate. Yattel (B. 2, ch. 8, the general government of the power to lay taxes and imposts, it must be considered, from “the nature of the power,” “that it [taxation generally] should be exercised exclusively by Congress.” On the contrary, all the cases before and hereafter cited, bearing on this question, concede that the general power of taxation still remains in the States ; but in that instance it was considered to be used so as to amount to a tax on imports, and, such a tax being expressly prohibited to -the States, it was adjudged there that for this reason it was unconstitutional. Under this head, then, as to taxation, it only remains to ascertain whether the toll or tax here imposed on alien passengers can be justly considered a tax on imports, as it was in the case of Brown v. Maryland, when laid on foreign goods. If so considered, it is conceded that this tax has been expressly forbid-den to be .imposed by a State, unless with the consent of Congress, or to aid in enforcing the inspection laws of the State. Clearly it does not come within either of those last exceptions, *535 and therefore the right to impose it must depend upon the question, whether- it is an le imposed on a passenger after quitting the vessel and on the land, why may it not before, when he is then within the limits of the State ? In either instance, the tax has no concern with the foreign voyage, and does not regulate the foreign commerce ; whereas, if otherwise, it might be as invalid when imposed on land as on water. Much of the difficulty in this case arises, I apprehend, from a misconception, as if this tax was imposed on the passenger at sea and before within the territorial limits of the State. But. this, as before suggested, is an entire misapprehension of the extent of those limits, or of the words and meaning of the law. If, then, as is argued, intercourse by merchants in person, and by officers in their vessels, boats, and wagons, is a part of commerce, and the carrying of passengers is also a branch of navigation or commerce, still the taxing of these after the arrival in port, though Congress there has power to collect its duties as it has on land, is not vested at all in Congress; or, if at all, not exclusively. Who can point to the cession to the United States of the jurisdiction, by Massachusetts or New York, of their own ports and harbours for purposes of taxation, or ány other local and municipal purpose ? So far from interfering at all here with the foreign voyage, the State power begins when that ends and the vessel has entered the jurisdictional limits of the State. Her laws reach the consequences and results of foreign commerce, rather than the commerce itself, They touch not the tonnage of the vessel, nor her merchandise, nor the baggage or tools of the aliens; nor do they forbid the vessels carrying passengers. *552 But as a condition to their landing and remaining within the jurisdiction of the State, enough is required by way of condition or terms for that privilege, arid the risk of their becoming chargeable, when aliens, (though not chargeable at the time,) to cover in some degree 'the. éxpenses happening under such contingency. This has nothing to, do with the regulation of commerce, itself, — the right to carry passengers to and fro over the Atlantic Ocean, — but merely with their inhabitancy or residence within a State so as to be entitled to its .charity, its privileges, and protection. Such laws do not conflict directly with- any provision by the general government as to foreign commerce, because none has been- made on this point, and they áre not in clear collision with any made by that government ■ on any other point, When, as here, they purport to be for a different purpose from touching the concerns of the general government, — when they are, as here, adapted to another local and legitimate object, — it is unjust to a sovereign State, and derogatory to the character of her people and legislature, to impute a sinister and illegitimate design to them concerning foreign commerce, different from that avowed, and from that which the amount of the tax and the evil to be guarded against clearly indicate as the true design. Hence, as before remarked, Mr. Justice Johnson, in the same opinion which was cited by the original defendants, says the purpose is the test; and if that be different, and does not clash, the law is not unconstitutional. So Chief, Justice Marshall, in 9 Wheat. 204 , says, that Congress for one purpose and a State for another may use like means and both be vindicated. And though Congress obtains its power from a special grant, like that of the power “ to regulate commerce,” the State may obtain it from a reserved power over internal commerce or over, its police.. Hence, while Congress regulates the number of passengers to the size of the vessel, as a matter of foreign commerce, and may exempt their baggage and -tools from duties as a matter of imposts on imports, yet this is not inconsistent with the power of a State, after passengers arrive within her limits, to impose térms on their landing, with a view to benefit her pauper police, or her fiscal resources, or her municipal safety and welfare. And the two powers, thus exercised separately by the two governments, may, as Mr. Justice Johnson says, “be perfectly distinct.” So, in the language of Chief Justice Marshall, “ if executed by the same means,” “ this does not prove that the powers themselves are identical.” The measures of the general government amount to a regulation of the traffic, or trade, or business, of carrying passen *553 gers, and of the imposts on imports; .but those of the States amount to neither, and merely aifect the passengers or master of the vessel after their arrival within the limits of a State, and for State purposes, State security, and State pjolicy. As we have before explained, then, if granting that the bringing of passengers. is a great branch of the business of navigation, and that to regulate commerce is to regulate navigation, yet this' statute of Massachusetts neither regulates that navigation employed in carrying passengers, nor the passengers themselves, either while abroad in foreign ports, or while. on the Atlantic Ocean, but merely taxes them, or imposes conditions on them, after within- the State. These things are done, as Mr. Justice Johnson said in another case, “with-a distinct view.” And it is no objection that they “act on the same subject ” ( 9 Wheat. 235 ); or, in the words of Chief Justice-Marshall, “although the means used in their execution may sometimes approach each other so nearly as to .be confounded ” (p.. 204). But where any doubt arises, it should operate against the uncertain and loose, or what' the late chief justice called “ questionable- power to regulate commerce,” ( 9 Wheat. 202 ,) rather than ■ the more fixed and distinct police or taxing-power. In cases like this, if, amidst the great complexity of human affairs, and in the sh,adowy line between the two governments over the same people, it is impossible for their mutual rights and powers -not to infringe occasionally upon each other, or cross a little the dividing line, it constitutes no cause for denouncing the acts on either side as being exercised under the same power or for the same purpose, and therefore unconstitutional and void. When, as is seldom likely, their laws come in direct and’ material collision, both being in the exercise of distinct powers,, which belofig to them, it is wisely provided, by the Constitution itself, and consequently by the States and the people themselves, as they framed it, that the States, being the granting power, must recede. ( 9 Wheat. 203 ; License Cases, 5 Howard; United States v. New Bedford Bridge, 1 Woodb. & Minot, 423.) Here we see no such collision. There are'other cases of seeming opposition which are reconcilable, and not conflicting, as to the powers exercised both by the States and the general government, but for different purposes. Thus hides may be imported under the acts of • Congress taxing imports and regulating commerce; but this does not deprive a State of the right, in guarding the public health, to have them destroyed if putrefied, whether béfore they reach the land or after. So as to the import of gunpowder by the authority of one government, and the prohibition' *554 by the other, for the public safety, to keep it in large quantities. (4 Metcalf, 294.) Neither of these acts by the State attempts to. intérfere with the commerce abroad, but after its arrival here, and for other purposes," local and-sanatory, or municipal. In short, it has been deliberately held by this court, that the laying a duty on imports, if this was of that character, is .an exercise of the taxing power, and not of that to regulate commerce. (Gibbons v. Ogden, 9 Wheat. 201 , by Chief Justice Marshall.) And if, in Brown v. Maryland, 12 Wheat. 447 , the tax or duty imposed there can be considered as held to violate both, it was because it was not only a tax on imports, but provided for the treatment of goods themselves, or regulated them as imported in foreign commerce, and while in bulk. But if the power exercised in this law by Massachusetts could, by a. forced construction, be tortured into a regulation of foreign commerce, the next requisite to make the law void is not believed to exist in the fact that the States (Jo not retain some concurrent or subordinate powers, such as were here exercised, though connected jn certain respects with foreign commerce. • Beside the ■ reasons already assigned for this opinion, it is not opposed to either the languagé or the spirit of the Constitution in connection with this particular grant. Accompanying it are no exclusive words, nor is the further ¿ction of the States, or any thing concerning commerce, expressly forbidden in any other way .in the Constitution. But both of these are done in several other cases, such as “no State shall coin money,” or no State “ engage in war,” and these are ordinary modes adopted in' the Constitution to indicate that a power granted is exclusive, when it was meant to be so. If this reasoning be not correct, why was express prohibition to the States used on any subject where authority was granted to Congress ? The only other mode to ascertain whether a power thus granted is exclusive “ is to look at the nature of each grant, and jf that does not clearly show the power to be exclusive, not to hold it to be so.” We have' seen that was the rulé laid down by one .of the makers and great expounders of the instrument. (Federalist, No. 82. See also 14 Peters, 575 .) It held out this as an inducement to the States to adopt the Constitution, and was urged by all.'the logic and eloquence of Hamilton. It was, that a grant of power to Congress, so far from being ipso facto exclusive, never ousted the power' of the Stateá previously existing, unless “where an exclusive authority is in express terms granted to the Union, or where, a particular authority is granted'to the Union and the exercise *555 of a like authority is prohibited to the States; or where an authority is granted to the Union, with which a similar authority in the States would be utterly incompatible.” This rule has been recognized in various decisions on constitutional -questions by many of-the judges of this court. 2Cranch, 397; 3 Wheat. 386 ; 5 Wheat. 49 ; Wilson v. Blackbird Creek Marsh Company, 2 Peters, 245 ; Prigg v. Pennsylvania, 16 Peters, 627 , 655, 664; New York v. Miln, 11 Peters, 103 , 132; Groves v. Slaughter, 15 Peters, 509 ; Holmes v. Jennisoh, 14 Peters, 579 . So by this court itself, in Sturges v. Crowninshield, 4 Wheat. 193 . And also by other authorities entitled to much respect. 4 Elliot’s Deb. 567; 3 Jefferson’s Life, 425-429; 3 Serg. & Rawle, 79 ; Peck’s Trial, 86, 87, 291-293, 329, 404, 434, 435; Calder v. Bull, 3 Dall. 386 ; 1 Kent’s Com. 364; 9 Johns. 568 . In other cases it is apparently contravened. 9 Wheat. 209 ; 15 Peters, 504 , by Mr. Justice McLean, and 511, by Mr. Justice Baldwin; Prigg v. Pennsylvania, 16 Peters, 543 ; New York v. Miln, 11 Peters, 158 , by Mr. Justice Story; The Chusan, 2 Story, 465 ; Golden v. Prince, 3 Wash. C. C. 325 . But this is often in appearance only, and not in reality.- It is not a difference as to what should be the true rule, but in deciding what cases fall within it, and especially the branch of it as to what is exclusive by implication and reasoning from the nature of the particular grant or case ; or in the words of Hamilton, “where an authority is granted to the Union, with which a similar authority in the States would be utterly incompatible.” Thus, in the celebrated case of Sturges v. Crowninshield, the rule itself is laid down in the same way substantially as in the Federalist; namely, that the power is to be taken from the State only when expressly forbidden, or where “the terms - in which a power is granted to Congress, or the nature of the power, require that it should be exercised exclusively by Congress.” ( 4 Wheat. 122, 193 , by Chief Justice Marshall; Prigg v. Commonwealth of Pennsylvania, 16 Peters, 626 , by Chief Justice Taney, and 650, by Mr. Justice Daniel.) And Chief Justice Marshall on another occasion considered this to be the true rule. .That was in the case of Wilson v. Blackbird Creek Marsh Company, 2 Peters, 245 , though a commercial question. And Judge Story did the same in Houston v. Moore, 5 Wheat. 49 , - a militia question. So, many of the other grants in • this same section of the Constitution, under like forms -of expression, have been virtually held not to be exclusive; such as that over weights and measures; that over bankruptcy (Sturges v. Crowninshield, 4 Wheat. 122 ); *556 that over taxation (see cases already cited); that to regulate the.-value of foreign coins; that to discipline „the militia (Houston v. Moore, 5 Wheat. 1 ; 3 Stor. Com. on Constitution, § 1202; 15 Peters, 499 ; Rawle on the Constitution, ch. 9, p. 111); that “to provide for the punishment of counterfeiting coin ” (Fox v. State of Ohio, 5 How. 410 ); and robbing the mail when punished as highway robbery ( 5 Wheat. 34 ). Why, then, hold this to be otherwise than concurrent? There are still other grants, in language like this, which never have been considered exclusive. Even the power to -pass uniform naturalization laws was once considered by this court as not exclusive (Collet v. Collet, 2 Dallas, 296 ); and though doubt has been flung on this since by the United States v. Villato, 2 Dall. 372 , Chirac v, Chirac, 2 Wheat. 269 , and by some of the court in 5 Howard, 585 , and Golden v. Prince, 3 Wash. C. C. 314 ; and though these doubts may be well founded unless the State naturalization be for local purposes only in the State, as* intimated in Collet v. Collet, and more favorable than the law of the United States, and not to give rights of citizenship out of the State, (1 Bl. Com., by Tucker, App. 3, 4, 255, 296,) which were the chief objections in 3 Wash. C. Cr 314; yet this change of opinion does not impugn in principle the ground for considering the local measure in their case as not conflicting with foreign commerce. The reasoning for a change there does not apply here. So, it is well settled that no grant of power to Congress is exclusive, unless expressly so, merely because it may be broad enough in terms to cover a power which cleárly belongs to the State; e. g. police, quarantine, and license laws. They may relate to a like place and subject, and by means somewhat alike, yet, if the purposes of the State and of 'Congress are different and legitimate for each, they are both permissible and neither exclusive. (See cases before cited, 4 Wheat. 196 ; 3 Ell. Deb. 259; Baldwin’s Views, 193, 194.) This very grant of the power “ to regulate commerce ” has also been held by this court not to prevent bridges or ferries by the States where waters are navigable. (Wilson v. Blackbird Creek Marsh Company, 2 Peters, 245 .) So elsewhere. (Corfield v. Coryell, 4 Wash. C. C. 371 ; 1 Woodb. & Mm. 417, 424, 425; 9 Wheat. 203 . See also Warren Bridge Case, 11 Peters, 420 ; 17 Conn. 64 ; 8 Cowen, 146; 1 Pick. 180 ; 7 N. Hamp. 35.) And it has been considered elsewhere not to confer, though in navigable waters, any right or control over the fisheries therein, within the limits of a State. ( 4 Wash. C. C. 383 . See also Martin v. Waddell, 16 Peters, 367 ; 3 Wheat. 383 ; Angell on Tide Waters, 105.) So the *557 States have been accustomed to legislate as to pilots, and Congress has concurred in it., But if the acts of the States alone as to pilots are not valid, on the ground of a concurrent power in them, it is difficult to see hoyr Congress can transfer or cede to the States an authority on this which the Constitution has not given to them. (Chief Justice Taney, in 5 Howard, 580 .) The real truth is, that, each possessing the power in some views and places, though not exclusively, Congress may declare it will not exercise the power on its part, either by an express law or by actual - omission, and thus leaye the field open to the States, on their reserved or concurrent rights, and not on any rights ceded to them by Congress. This reconciles the whole matter, and tends strongly to sustain the same view in the case now under consideration. Nor has it ever been seriously contended, that, where Congress has chosen to legislate about commerce and navigation on our navigable waters as well- as the'sea-coast, and to introduce guards against steam explosions and dangers, in steam vessels, the law is not to be enforced as proper under thé power to regulate commerce, and when not in conflict with any State legislation. . This power in Congress .is at least concurrent, and extends to commerce on rivers, and even on land, as well as at sea, when between our own States or with foreign countries. Whether this could be done as to vessels on waters entirely within any one State is a .different question, which need not be here considered. (See Waring v. Clark, 5 Howard, 441 .) As a general rule of construction, then, the grants to Congress should never be considered as exclusive, unless so indicated expressly in the Constitution by the nature or place of the thing granted, or by the positive prohibition usually resorted to when that end is contemplated, as that “ no State shall enter int'o any treaty,” or “ coin money,” &c.; “no State shall, without the consent of Congress, lay any imposts or duties on imports,” &c. (Art. 1, § 9. United States v. New Bedford Bridge, 1 Woodb. & Min. 432.) It is also a strong argument, after using this- express- prohibition in some cases, that, when not used in others, as it is not here, it is not intended. Looking at the nature of this grant, likewise, in order to see if it can or should be entirely exclusive, we are forced to the same conclusions. There is nothing in the nature of much which is here connected with foreign commerce that is in its character foreign, or appropriate for the action of a central and single government; on the contrary, there, is matter 'which is entirely local,— something which is seldom universal, or required to be *558 either general or uniform: For though Congress is empowered to regulate commerce, and ought to legislate for foreign commerce as for all its leading incidents and uniform and universal wants, 3ret “ to regulate commerce ” could never have been supposed by the framers of the Constitution to devolve on the general government the care of any thing except exterior intercourse with foreign nations, with other States, and the Indian tribes. Every thing else within State limits was, of course, to be left to each State, as too different in so large a country to be subjected to uniform rules; too multifarious for the attention of the central government, and toó local for its cognizance over Only general matters. It was a difference between the States as to imposts or. duties on imports and tonnage which embarrassed their intercourse with each other and Avith foreign nations, and Avhich mainly led to the new Constitution, and not the mere regulation of commerce. ( 9 Wheat. 225 .) It was hence'that the States in respect to duties and imposts were not left to exercise concurrent powers, and this Avas prevented, -not by merely empowering Congress to tax imports, but by expressly forbidding the States to dp the same ; and this express prohibition would not have been resorted to, or been necessary,'if a mere grant to Congress of the power to impose duties or to “ regulate commerce ” was alone deemed exclusive, and Avas to prevent taxation of imports by the States,: or assessing money by them on any kind of business or traffic by navigation, such as carrying passengers. Congress, in this way, resorted to a special ¿prohibition where they meant one (as to taxes on * imports); but where they did nc t, as, for' example, in other taxation or regulating commerce, they introduced no such special prohibition, and left the States to act also on local and appropriate matters, though connected in some degree Avith commerce. Where, at any time, Congress had' not legislated or preoccupied that particular field, the States acted freely and beneficially, yielding-, hoAvever, to Congress when it does act on the same particular matter, unless both act for different and. consistent objects. (Gibbons v. Ogden, 9 Wheat. 204 , 239.) In this way much was meant to be left in the States, and much ever has been left, which partially related to commerce, and an expansive, arid roving, and absorbing construction has since been attempted to -be given to the grant of the. poAver to regulate commerce, apparently never thought of at the time it was introduced into the Constitution. When I say much was'left, and meant to be left, to the States in connection with commerce, I mean, concerning details and local matters, inseparable in *559 some respects from foreign commerce, but not belonging to its exterior or general character, and not conflicting with any thing Congress has already done. (Vanderbilt v. Adams, 7 Wendell, 349 ; New Bedford Bridge Case, 1 Woodb. & Min. 429.) Such is this very matter as to taxation to support foreign paupers, with many other police matters, quarantine, inspections,