Passenger Cases.-Mr. Justice Woodbury's Opinion.

Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." If, in the face of this, Congress is to be regarded as having obtained a power of restriction over the States on this subject, it must be by mere implication, and this either from the grant to impose taxes and duties, or that which is usually considered a clause only to prohibit and tax the slave-trade, or that to regulate commerce. And this statute of Massachusetts, in order to be unconstitutional, must be equivalent to one of these, or conflicting with one of them.

In relation, first, to the most important of these objections, regarding the statute in the light of a tax, and as such supposed to conflict with the general power of taxation conferred on Congress, as well as the exclusive power to tax imports, I would remark, that the very prohibition to the States, in express terms, to tax imports, furnishes additional proof that other taxation by the States was not meant to be forbidden in other cases and as to other matters. Expressio unius, exclusio est alterius. It would be very extraordinary, also, that, when expressly ceding powers of taxation to the general government, the States should refrain from making them exclusive in terms, except as to imports and tonnage, and yet should be considered as having intended, by mere implication, there or elsewhere in the instrument, to grant away all their great birthright over all other taxation, or at least some most important branches of it. Such has not been the construction or practical action of the two governments for the last half-century, but the States have continued to tax all the sources of revenue ceded to Congress, when not in terms forbidden. This was the only safe course. (Federalist, No 32.)

One of the best tests that this kind of tax or fee for admission to the privileges of a State is permissible, if not expressly forbidden, is the construction in two great cases of direct taxes on land imposed by Congress, in 1798 and 1813. The States, on both of those occasions, still continued to impose and collect their taxes on lands, because not forbidden expressly by the Constitution to do it. And can any one doubt, that, so far as regards taxation even of ordinary imports, the States could still exercise it if they had not been expressly forbidden by this clause? (Collet v. Collet, 2 Dall., 296; Gibbons v. Ogden, 9 Wheat., 201.) If they could not, why was the express prohibition made? Why was it deemed necessary? (Federalist, No. 32.)

This furnishes a striking illustration of the true general rule of construction, that, notwithstanding a grant to Congress is

Passenger Cases.-Mr. Justice Woodbury's Opinion.

*express, if the States are not directly forbidden to act, it does not give to Congress exclusive authority over [*534 the matter, but the States may exercise a power in several respects relating to it, unless, from the nature of the subject and their relations to the general government, a prohibition is fairly or necessarily implied. This power in some instances seems to be concurrent or coördinate, and in others subordinate. On this rule of construction there has been much less doubt in this particular case as to taxation, than as a general principle on some other matters, which will hereafter be noticed under another head. The argument for it is unanswerable, that, though the States have, as to ordinary taxation of common subjects, granted a power to Congress, it is merely an additional power to their own, and not inconsistent with it.

It has been conceded by most American jurists, and, indeed, may be regarded as settled by this court, that this concurrent power of taxation, except on imports and exports and tonnage, (the last two specially and exclusively resigned to the general government,) is vital to the States, and still clearly exists in. them. In support of this may be seen the following authorities:-McCulloch v. State of Maryland, 4 Wheat., 316, 425; Gibbons v. Ogden, 9 Wheat., 1, by Chief Justice Marshall; Providence Bank v. Billings, 4 Pet., 561; Brown v. State of Maryland, 13 Wheat., 441; 4 Gill & J. (Md.), 132; 2 Story's Com. on Const., § 437; 5 How., 588; Weston v. City of Charleston, 2 Pet., 449; Federalist, No. 42.

Nor is the case of Brown v. Maryland, so often referred to, opposed to this view. It seems to have been a question of taxation, but the decision was not that, by the grant to 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 forbidden to be imposed by a State, unless with the consent of Congress, or to aid in enforcing the inspection laws of the State.

Passenger Cases.-Mr. Justice Woodbury's Opinion.

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 "impost," and whether passengers are "imports," within the meaning of the Constitution. An impost is usually an ad valorem or specific duty, and not a fee like this for allowing a particular act, or a poll-tax like this, a fixed sum per head. An import is also an article of merchandise, goods of some kind,-property, "commodities." (Brown v. Maryland, 12 Wheat., 437. See McCulloch's Dict., Imports; 5 How., 594, 614.) It does not include persons unless they are brought in as property, as slaves, unwilling or passive emigrants, like the importation referred to in the ninth section of the first article of the Constitution. (New York v. Miln, 11 Pet., 136; Case of the Brig Wilson, 1 Brock., 423.)

Now there is no pretence that mere passengers in vessels are of this character, or are property; otherwise they must be valued, and pay the general ad valorem duty now imposed on non-enumerated articles. They are brought in by no owner, like property generally, or like slaves. They are not the subject of entry or sale. The great objection to the tax in Brown v. Maryland was, that it clogged the sale of the goods. They are not like merchandise, too, because that may be warehoused, and reëxported or branded, or valued by an invoice. They may go on shore anywhere, but goods cannot. A tax on them is not, then, in any sense, a tax on imports, even in the purview of Brown v. Maryland. There it was held not to be permitted until the import in the original package or cask is broken up, which it is difficult to predicate of a man or passenger. The definition there, also, is "imports are things imported," not persons, not passengers; or they are “articles brought in," and not freemen coming of their own accord. (12 Wheat., 437.) And when "imports" or "importation is applied to men, as is the case in some acts of Congress, and in the ninth section of the first article of the Constitution, it is to men or "persons" who are property and passive, and brought in against their will or for sale as slaves, brought as an article of commerce, like other merchandise. (New York v. Miln, 11 Pet., 136; 15 Pet., 505; 1 Bl. Com., by Tucker, pt. 2, App. 50.)

But, so far from this being the view as to free passengers taxed in this statute,-that they are merchandise or articles of commerce, and so considered in any act since 1808, or before, -it happens that, while the foreign import or trade as to slaves is abolished, and is made a capital offence, free passengers are not prohibited, nor their introduction punished as a

Passenger Cases.-Mr. Justice Woodbury's Opinion.

crime. (4 Elliot's Deb., 119.) If "importation" in the ninth section applied to one class of persons, and "migration" to another, as has been argued, then allowing a tax by Congress on the importation" of any person was meant to be confined to slaves, and is not allowed on "migration," [*536 either in words or spirit, and hence it confers no power on Congress to tax other persons (see Iredell's remarks, 4 Elliot's Deb., 119); and a special clause was thought necessary to give the power to tax even the "importation" of slaves, because "a duty or impost" was usually a tax on things, and not persons. (1 Bl. Com., by Tucker, App. 231.)

Indeed, if passengers were "imports" for the purpose of revenue by the general government, then, as was never pretended, they should and can now be taxed by our collectors, because they are not enumerated in the tariff acts to be admitted "free" of duty, and all non-enumerated imports have a general duty imposed on them at the end of the tariff; as, for instance, in the act of July 30, 1846, section third, "a duty of twenty per cent. ad valorem" is laid "on all goods, wares, and merchandise imported from foreign countries, and not specially provided for in this act."

To come within the scope of a tariff, and within the principle of retaliation by or towards foreign powers, which was the cause of the policy of making imposts on imports exclusive in Congress, the import must still be merchandise or produce, some rival fruit of industry, an article of trade, a subject, or at least an instrument, of commerce. Passengers, being neither, come not within the letter or spirit or object of this provision in the Constitution.

It is, however, argued, that, though passengers may not be imports, yet the carrying of them is a branch of commercial business, and a legitimate and usual employment of naviga

tion.

Grant this, and still a tax on the passenger would not be laying a duty on "imports" or on "tonnage"; but it might be supposed to affect foreign commerce at times, and in some forms and places, and thus interfere with the power to regulate that, though not with the prohibition to tax imports and tonnage. Consequently, when hereafter considering the meaning of the grant "to regulate commerce," this view of the objection will be examined.

But there seems to be another exception to this measure, as conflicting with the powers of the general government, which partly affects the question as a tax, and partly as a regulation of commerce. It is, that the tax was imposed on a vessel before the passengers were landed, and while under

Passenger Cases.-Mr. Justice Woodbury's Opinion.

the control of the general government. So far as it relates to the measure as a tax, the exception must be regarded as applying to the particular place where it is collected, in a vessel on the water, *though after her arrival within a

*537] port or harbour. It would seem to be argued, that, by

some constitutional provision, a State possesses no power in such a place. But there is nothing in the taxing part of the Constitution which forbids her action in such places on matters like this. If forbidden at all, it must be by general principles of the common and of national law, that no State can assess or levy a tax on what is without the limits of its jurisdiction, or that, if within its territorial limits, the subjectmatter is vested exclusively by the Constitution in the general government.

It will be seen, that, if the first exception be valid, it is not one connected with the Constitution of the United States, and hence not revisable here. It was not, and could not properly be, set up as a defence in the court of a State, except under its own constitution, and hence not revisable in this court by this writ of error. But as it may be supposed to have some influences on the other and commercial aspect of the objection, it may be well to ascertain whether, as a general principle, a vessel in a port, or its occupants, crew, or passengers, are in fact without the limits or jurisdiction of a State, and thus beyond its taxing power, and are exclusively for all purposes under the government of the United States. One of the errors in the argument of this part of the cause has been an apparent assumption that this tax-considered as a tax-was collected at sea, before the voyage ended, and was not collected within the limits and jurisdiction of the State. But, ex concesso, this vessel then was in the harbour of Boston, some miles within the limits of the State, and where this court itself has repeatedly decided that Massachusetts, and not the general government, has jurisdiction. First, jurisdiction to punish crimes. (See in Waring v. Clarke, 5 How., 441; Id., 628; Coolidge's case, 1 Wheat., 415; Bevans's case, 3 Wheat., 336; 1 Woodb. & M., 401, 455, 481, 483.) Next, the State would have jurisdiction there to enforce contracts. So must she have to collect taxes, for the like reason (5 How., 441); because it was a place within the territorial limits and jurisdiction of the State. Chief Justice Marshall, in 12 Wheat., 441, speaks of "their [the States'] acknowledged power to tax persons and property within their territory." (Id., 444.)

The tax in this case does not touch the passenger in transitu on the ocean, or abroad,-never till the actual arrival of