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

the vessel with him in port. An arrival in port, in other acts of Congress using the term, is coming in, or anchoring within, its limits, with a view to discharge the cargo. (2 Sumner, 419; 5 Mason, 445; 4 Taunt., 662, 722; Toler v. White, Ware, 277.)

*For aught that appears, this vessel, before visited, had come in and was at anchor in the port. The per[*538 son so going into port abroad is considered to have "arrived," so as to be amenable to his consul, and must deposit his papers. He has come under or into the control of shore power, and shore authority, and shore laws, and shore writs, and shore juries; at least concurrently with other authorities, if not exclusively. In common parlance, the voyage for this purpose at least is not interrupted; for then it has ended, and the State liabilities and powers begin, or the State becomes utterly imbecile. Hence, speaking of a country as distinguished from the sea, and of a nation as a state, Vattel (B. 1, ch. 23, § 290) says:-"Ports and harbours are manifestly an appendage to, and even a part of, the country, and consequently are the property of the nation. Whatever is said of the land itself will equally apply to them, so far as respects the consequences of the domain and of the empire." If the ports and harbours of a State are intra fauces terræ, within the body of a country, the power of taxation is as complete in them as it is on land, a hundred miles in the interior. Though on tide waters, the vessels are there subject for many purposes to State authority rather than Federal, are taxed as stock in trade, or ships owned, if by residents; the cargo may be there taxed; the officers and crew may be there taxed for their polls, as well as estate; and, on the same principle, may be the master for the passengers, or the passengers themselves. Persons there, poor and sick, are also entitled to public relief from the city or State. (4 Metc. (Mass.), 290, 291.) No matter where may be the place, if only within the territorial boundaries of the State, or, in other words, within its geographical limits. The last is the test, and not whether it be a merchant-vessel or a dwelling-house, or something in either, as property or persons. Unless beyond the borders of the State, or granted, as a fort or navy-yard within them, to a separate and exclusive jurisdiction, or used as an authorized instrument of the general government, the State laws control and can tax it. (United States v. Ames, 1Woodb. & M., 76, and cases there cited.)

It is true there are exceptions as to taxation which do not. affect this question; as where something is taxed which is held under the grants to the United States, and the grants

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

might be defeated if taxed by the State. That was the point in McCulloch v. Maryland, Wheat., 316; Weston v. City of Charleston, 2 Pet., 449; Dobbins v. Commissioners of Erie County, 16 Pet., 435; Osborn v. Bank of the United States, 9 Wheat., 738. But that is not the question here, as neither passengers nor the master of the vessel can be considered as official instruments of the government.

*539] *In point of fact, too, in an instance like this, it is well known that the general jurisdiction of the States for most municipal purposes within their territory, including taxation, has never been ceded to the United States nor claimed by them; but they may anchor their navies there, prevent smuggling, and collect duties there, as they may do the last on land. But this is not inconsistent with the other, and this brings us to the second consideration under this head, how far such a concurrent power in that government, for a particular object, can, with any propriety whatever, impair the general rights of the States there on other matters.

These powers exist in the two governments for different purposes, and are not at all inconsistent or conflicting. The general government may collect its duties, either on the water or the land, and still the State enforce its own laws without any collision, whether they are made for local taxation, or military duty, or the collection of debts, or the punishment of crimes. There being no inconsistency or collision, no reason exists to hold either, by mere construction, void. This is the cardinal test.

So the master may not always deliver merchandise rightfully, except on a wharf; nor be always entitled to freight till the goods are on shore; yet this depends on the usage, or contract, or nature of the port, and does not affect the question of jurisdiction. (Abbott on Shipping, 249; 4 Bos. & P., 16.) On the contrary, some offences may be completed entirely on the water, and yet the State jurisdiction on land is conceded. (United States v. Coombs, 12 Pet., 72.)

So a contract with a passenger may or may not be completed on arriving in port, without landing, according as the parties may have been pleased to stipulate. (Brig Lavinia, 1 Pet., Adm., 125.)

So the insurance on a cargo of a ship may not in some cases terminate till it is landed, though in others it may, depending on the language used. (Reyner v. Pearson, 4 Taunt., 662, and Levin v. Newnham, Id., 722.) But none of these show that the passengers may not quit the vessel outside the harbour in boats or other vessels, and thus go to the land, or go to other ports. Or that, if not doing this, and coming in

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

the same vessel within the State limits, they may not be subject to arrests, punishments, and taxation or police fees, or other regulations of the State, though still on board the vessel. Nor do any of them show that the vessel and cargo, after within the State limits, though not on the shore, are not within the jurisdiction of the State, and liable, as property of the owner, to be taxed in common with other stock in trade.

*I will not waste a moment in combating the novel

idea, that taxes by the States must be uniform, or they [*540

are void by the Constitution on that account; because clearly that provision relates only to taxes imposed by the general government. It is a fallacy, also, to argue that the vessels, crews, and passengers, when within the territory of a State, are not amenable to the State laws in these respects, because they are enrolled as belonging to the United States, and their flag is the flag of the United States. For though they do belong to the United States in respect to foreign nations and our statistical returns and tables, this does not prevent the vessels at the same time from being owned by citizens of the State of Massachusetts, and the crew belonging there, and all, with the passengers, after within her limits, from being amenable generally to her laws.

If taking another objection to it as a tax, and arguing against the tax imposed on the vessel, because it may be abused to injure emigration and thwart the general government, it would still conflict with no particular clause in the Constitution or acts of Congress. It should also be remembered that this was one objection to the license laws in 5 How., and that the court held unanimously they were constitutional, though they evidently tended to diminish importations of spirituous liquor and lessen the revenue of the general government from that source. But that being only an incident to them, and not their chief design, and the chief design being within the jurisdiction of the States, the laws were upheld.

It is the purpose which Mr. Justice Johnson thinks may show that no collision was intended or effected. "Their different purposes mark the distinction between the powers brought into action, and while frankly exercised they can produce no serious collision." (Gibbons v. Ogden, 9 Wheat., 235.) "Collision must be sought to be produced." "Wherever the powers of the respective governments are frankly exercised, with a distinct view to the end of such powers, they may act on the same subject, or use the same means,

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

and yet the powers be kept perfectly distinct." (p. 239.) See 1 Woodb. & M., 423, 433.

The next delegation of power to Congress, supposed by some to be inconsistent with this statute, is argued to be involved in the ninth section of the first article of the Constitution. This they consider as a grant of power to Congress to prohibit the migration from abroad of all persons, bond or free, after the year 1808, and to tax their importation at once and for ever, not exceeding ten dollars per head. (See 9 Wheat., 230, by Mr. Justice Johnson; 15 Pet., 514.) The *541] words are:-* The migration or importation of such persons as any of the States now existing shall think proper to admit shall not be prohibited by the Congress prior to the year 1808; but a tax or duty may be imposed on such importation, not exceeding ten dollars for each person.' But it deserves special notice, that this section is one entirely of limitation on power, rather than a grant of it; and the power of prohibition being nowhere else in the Constitution expressly granted to Congress, the section seems introduced rather to prevent it from being implied except as to slaves, after 1808, than to confer it in all cases. (1 Brock., 432.)

If to be implied elsewhere, it is from the grant to regulate commerce, and by the idea that slaves are subjects of commerce, as they often are. Hence, it can go no further than to imply it as to them, and not as to free passengers.

Or if to "regulate commerce extends also to the regulation of mere navigation, and hence to the business of carrying passengers, in which it may be employed, it is confined to a forfeiture of the vessel, and does not legitimately involve a prohibition of persons, except when articles of commerce, like slaves. (1 Brock., 132.) Or finally, however far the power may extend under either view, it is still a power concurrent in the States, like most taxation and much local legislation as to matters connected somewhat with commerce, and is well exercised by them when Congress does not, as here, legislate upon the matter either of prohibition or of taxation of passengers. It is hence that, if this ninth seetion is a grant of the power to prevent the migration or importation of other persons than slaves, it is not an exclusive one, any more than that to regulate commerce, to which it refers; nor has it ever been exercised so as to conflict with State laws, or with the statute of Massachusetts now under consideration. This clause itself recognizes an exclusive power of prohibition in the States until the year 1808. And a concurrent and subordinate power on this by the States, after that, is nowhere expressly forbidden in the Con

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

stitution, nor is it denied by any reason or necessity for such exclusiveness. The States can often use it more wisely than Congress in respect to their own interests and policy. They cannot protect their police, or health, or public morals without the exercise of such power at times and under certain exigencies, as forbidding the admission of slaves and certain other persons within their borders. One State, also, may require its exercise, from its exposures and dangers, when another may not. So it may be said, as to the power to tax importation, if limited to slaves, the States could continue to do the same when they pleased if men are not deemed "imports."

*But to see for a moment how dangerous it would be to consider a prohibitory power over all aliens [*542 as vested exclusively in Congress, look to some of the consequences. The States must be mute and powerless.

If Congress, without a coördinate or concurrent power in the States, can prohibit other persons as well as slaves from coming into States, they can of course allow it, and hence can permit and demand the admission of slaves, as well as any kind of free person, convicts or paupers, into any State, and enforce the demand by all the overwhelming powers of the Union, however obnoxious to the habits and wishes of the people of a particular State. In view of an inference like this, it has therefore been said that, under this section, Congress cannot admit persons whom a State pleases to exclude. (9 Wheat., 230; Justice Johnson.) This rather strengthens the propriety of the independent action of the State, here excluding conditionally, than the idea that it is under the control of Congress.

Besides this, the ten dollars per head allowed here specially to be collected by Congress on imported slaves is not an exclusive power to tax, and would not have been necessary or inserted, if Congress could clearly already impose such a tax on them as "imports," and by a duty" on imports. It would be not a little extraordinary to imply by construction a power in Congress to prohibit the coming into the States of others than slaves, or of mere aliens, on the principle of the alien part of the Alien and Sedition Laws, though it never has been exercised as to others permanently; but the States recommended to exercise it, and seventeen of them now actually doing it. And equally extraordinary to imply, at this late day, not only that Congress possesses the power, but that, though not exercising it, the States are incapable of exercising it concurrently, or even in subordination to Congress. But beyond this, the States have exercised it