Passenger Cases.-Argument of Mr. W. Hall.

*2d. As to a law. There is no law of the United Even if they have the

*360] States taxing passengers.

power, they have not used it. Nor can it fairly be said that there is a law regulating passengers. The law of 1819 (3 Story, 1722) relates to "passenger ships and vessels." It regulates the number of passengers who may be taken on board by the tonnage. It was made in the exercise of the undisputed police power of Congress over vessels on the ocean. There is nothing in it with which the State law interferes in the remotest degree.

But, it is replied, we do not contend there is any conflict with any written law, any actual regulation, but with "a nonregulation."

Congress, it is assumed, has legislated on the subject of passengers, and it is as much its will that what is not prohibited should remain as it is, as what is prohibited. In other words, that, by making one regulation on a subject, Congress takes possession of the whole subject as effectually as by making every possible regulation. This ingenious theory has never been applied in practice, and never can be.

1. None but "laws made" are declared by the Constitution to be the supreme law of the land. Is this imaginary “nonregulation a law made by Congress? What are its terms, its provisos, and its exceptions,-its extent, its length, and its breadth? And who is to construe and apply it?

2. This inferential legislation is uncontrollable by Congress. A vast mass of means hitherto left exclusively to the States, as more advantageous to the country, will be immediately seized upon and appropriated by the Federal government, not by virtue of any new legislation, but by this court sanctioning the theory of "non-regulation." No discretion is left to the legislature. The constitution becomes self-acting. seizes, proprio vigore, when any power is put in action by the slightest act of legislation on the subject, upon all the means which might by any possibility be brought within its reach. The concurrence of State power becomes an empty sound.

It

The rule, in case of collision between Federal and State laws on a subject of concurrent jurisdiction, laid down by Marshall, is, that "the State law, so far, and so far only, as that incompatibility exists, must necessarily yield." (5 Wheat., 49, 50.) This is no longer the rule. The State laws must yield so far as the Federal power extends,-so far as the Federal government had power to pass incompatible laws.

Things which have hitherto been left to the States must be taken from them. Pilot laws, harbour regulations, laws re

Passenger Cases.-Argument of Mr. W. Hall.

[*361

specting lighterage, wharfage, &c., must be abolished. Tidemills, dams, bridges, &c., upon navigable tide-water, which *line our coast, must be swept away. Under the doctrine of "non-regulation," Congress takes possession at once of all the remote as well as immediate means of executing its powers; e. g., the power to regulate commerce gives remote power over the ship-builder, the timber-merchant, the lumberman, &c. The names of some of the titles in the French Code of Commerce may convey some idea of the extent of power which may be included in the power to regulate commerce-Partnerships, Banks, Brokers, Carriers, Bills of Exchange, Vessels, Insurances, Bankruptcies, &c. Thus far Congress has left these subjects to the States; but if this doctrine of non-regulation " non-regulation" prevails, the matter is taken out of the hands of Congress, and all the regulations on these subjects which it was competent for Congress to make under its constitutional power are to be considered as made already. State power is in effect annihilated; if not at once, it is so crippled that it dies a lingering death.

This rule of construction will be found oppressive in the extreme, and impossible. Oppressive, because it requires men to obey laws which they cannot know; impossible, because the courts cannot apply it. The courts easily determine the limits of a written law, and their decisions are uniform; but it surpasses human knowledge to ascertain with precision the ramifications of a subject-matter.

Subjects intermingle. Commerce, manufactures, agriculture, are concerned in ship-building. Scarcely an act can be presented to the court which is not compound. How much of that subject, which carries with it the power of Congress, shall be necessary for that purpose?

It is to commerce particularly that this theory has been applied. "Commerce," it is said, "is a unit, and what is not regulated is as much a part of the unit as what is." We may admit that the power to regulate commerce is a unit, and is exclusive. We may admit that the regulations of commerce form one system, and are all exclusive. But the means employed or resorted to by these regulations are as diverse as nature, and as free to the States as to Congress. This case turns upon taking money as a tax or toll from passengers. This is not a regulation of any kind, but an act, a means.

These means are not permanently or necessarily attached to the regulation which adopts them. Granted that they may be resorted to to-day by a regulation of commerce, they are not inseparately attached to that regulation. They form no part of the unit. They may be resorted to to-morrow by a

Passenger Cases.-Argument of Mr. W. Hall.

totally different regulation,-one of health or finance on the part of *the States. The fallacy consists in confound

*362] ing a regulation of commerce with the means which it

adopts.

This idea of unity was first broached by Mr. Madison, who suggested that the right to regulate commerce was one and indivisible, and would exclude the States from the right to lay tonnage duty, and consequently that there was no necessity for any express prohibition in the Constitution upon the States. (3 Madison Papers, 1585.) The convention thought otherwise, and inserted the prohibitory clause, and Marshall intimates that it might have been resorted to by the States had it not been prohibited. (9 Wheat., 202.) The idea was again suggested by Mr. Webster in his argument in the case of Gibbons v. Ogden. (9 Wheat., 14.) "Henceforth," he says, "the commerce of the State was to be a unit." This view of the nature of the commercial power was afterwards referred to by Marshall as one having great weight. (Id., 209.)

The major proposition of these distinguished men, of the unity of the commercial power, is not contested, but merely its application to commercial means. The case of Gibbons v. Ogden was not decided against the State on the ground that the law of the State violated the commercial unity, or that the means employed by the State were not in themselves common to both governments, but because a law of the United States had already appropriated them to her use, and that the law of the State attempting to do the same was necessarily repugnant to the Federal law, and therefore void.

Marshall certainly did not intend, by the unity of commercial power, unity of commercial means, nor that the power of Congress to use the means of itself appropriated them, or that non-regulation" was equivalent to regulation, in any case.

66

In Sturges v. Crowninshield, his language is,-" It may be thought more convenient that much of it [any subject committed to Congress] should be regulated by State legislation, and Congress may purposely omit to provide for many cases to which their power extends." (4 Wheat., 195.) It is obvious that he thought the States might use any means whatever not prohibited to them, and which Congress had not by an actual law appropriated to itself.

Again, he says in Wilson v. The Blackbird Creek Marsh Co., "If Congress had passed any act which bore upon the case, . we should feel not much difficulty in saying that a a State law coming in conflict with such act would be void. But Congress has passed no such act." True, says the objector, but Congress has power to pass such an act, and "non

Passenger Cases.-Argument of Mr. W. Hall.

regulation" is equal to regulation. It is clear that Marshall gave no such efficacy to "non-regulation."

*The repugnance which makes a State law void must be to some actual existing law of the United [*363 States, and not to some non-existing inferential regulation. I have attempted to prove that the power over passengers either to exclude or tax them has not been given to Congress, either directly or indirectly; that it has nowhere directly or inferentially been prohibited to the States; that in practice it has been used by the States exclusively since the foundation of the government; and that the law of the State of New York now in question, made in exercise of that power, does not, in the remotest degree, infringe any treaty or any law of the United States.

I cannot conclude this argument without calling the particular attention of this court to the case of The City of New York v. Miln. The Supreme Court of the State of New York held this case to be identical with that. In that case the State law required the master to deliver a manifest of his passengers to the mayor within twenty-four hours of his arrival; to give bond and security for $300 to the city to indemnify against expenses of maintenance; that the master shall remove such passengers as the mayor, &c., shall direct; that the vessel shall be liable for any penalties incurred by the master. That law, like this, was alleged to be a regulation of commerce. That law prohibited passengers from landing altogether. This allows them to land on condition of paying expenses. That law required the master to give bond and security in $300 for each passenger. This law allows each one to come on shore on payment of the expenses. That law, after two elaborate arguments, was held not to be a regulation of commerce. In what particular does it differ in principle from this? Both are made in the execution of police laws of the State. Neither assumes to regulate commerce, and both are interferences with it.

The gist of the argument of Mr. Justice Story in his dissenting opinion in that case is, that "the States cannot resort to a regulation of commerce," &c., &c. Certainly not. The very question in dispute was, whether that was a regulation of commerce. He assumes, without proving it, the whole question.

He speaks of exclusive means. Powers may be exclusive, regulations may be exclusive, but means cannot be so, unless the States are excluded from them by name in the Constitution, or unless the Federal government have appropriated them, by an express law, to their own use. No doubt, as the

Passenger Cases. --Argument of Mr. W. Hall.

very learned judge says, if the same means had been resorted to by Congress, it would have been in the execution of a regulation of commerce, and when resorted to by the States, it is in the bona fide execution of a police law.

*The rule is very clearly and concisely laid down

*364] by Judge Johnson :-" Whenever the powers of the

respective governments are frankly exercised with a distinct view to the ends of such powers, they may act upon the same means, and yet the powers be kept perfectly distinct. A resort to the same means, therefore, is no argument to prove the identity of their respective powers.' (9 Wheat., 239.)

This case cannot be decided for the plaintiff without overruling the case of Miln. This court, like all others, is presumed to be governed by the maxim, Stare decisis. For no court is it so important. Disrespect follows inconsistency, and woe to the Union when the decisions of this court shall cease to be respected. If the majority of to-day attempt to correct a supposed previous erroneous decision, the majority of to-morrow will certainly reinstate the old rule. This court remains, but its members change. Three of the five members who decided in favor of State rights in the case of Miln are gone. Where is Thompson? Where is Thompson? Where is Baldwin? Where is Barbour, who gave the opinion of the court in that case? Had these judges remained in the seats which they once adorned, this suit would never have been brought. Is it wise thus to invite speculation upon the sad changes which the inevitable doom that awaits us all must produce in this tribunal? If temporary majorities are to give the law of this court, its decisions, which should be as permanent as the republic, will become as fluctuating and mortal as its members.

The poor emigrants do not ask to be relieved of this tax. They do not bring this suit, nor is it brought for their benefit. The foreign agent, the rich shipper, is before this court striving, at the expense of these unfortunates,. to swell their enormous gains. This toll is embraced in the price of passage. The emigrant knows nothing of it. If it is removed, he will know nothing of it, but that the home and the asylum that greeted him, and rescued him from disease and death on his arrival, are gone.

What cares the rich shipper of Liverpool, what cares his agent in New York, whether infection is brought to our shores, whether disease ravage our city? No ties bind him to the soil. No family or kindred to weep over. Wealth is at his disposal. He keeps aloof or flies from the pestilence