Opinion
04-09-1861
BAKER v. WISE, Governor.
Crump, for the appellant. Johnson, of Massachusetts, on the same side. Attorney General for Appellee. Tazewell Taylor, for the appellant, in reply.
This was an action in the Circuit court of the city of Norfolk, brought in the name of Henry A. Wise, Governor of Virginia, for the benefit of the State and of Joseph V. Brough, against Levi Baker, as captain of the schooner Nymphus C. Hall, to recover from him the penalty imposed by the first section of the act of March 17, 1856, entitled " An act providing additional protection for the slave property of citizens of this Commonwealth," Sess. acts 1855-6, p. 38, for causing his vessel to depart from the State without the certificate of inspection required by the act. The first section of this act provides " that it shall not be lawful for any vessel of any size or description whatever, owned in whole or in part by any citizen or resident of another State, and about to sail or steam from any port or place in this State for any port or place north of and beyond the capes of Virginia, to depart from the waters of this Commonwealth until said vessel has undergone the inspection hereinafter provided for in this act, and received a certificate to that effect." And it imposes a penalty of five hundred dollars on the captain or owner of any vessel which shall depart from the State without such certificate, to be recovered by any person who will sue for the same in the name of the Governor of the Commonwealth.
The defendant appeared and filed the plea of " nil debet, " on which issue was joined; and on the trial the jury found a special verdict as follows: " That the defendant a citizen of Massachusetts, according to the allegations set forth in the plaintiff's declaration, did on or about the 4th day of August, 1856, then being the captain and owner of the schooner Nymphus C. Hall, owned in part by citizens of Massachusetts, leave the waters of Virginia with said schooner for a port north of and beyond the capes of Virginia, without having first obtained a certificate of inspection, as required by the provisions of the statute in such cases made and provided." And they find for the plaintiff the penalty of five hundred dollars, with interest, damages and costs, if the aforesaid act is not in violation of the constitution of the United States, or the constitution and bill of rights of Virginia; but if it is in violation of any of these, then they find for the defendant. Upon this verdict the Circuit court rendered a judgment for the plaintiff; and Baker applied to this court for a writ of error to the judgment; which was awarded.
The case was argued by Crump, Johnson, of Massachusetts, and Tazewell Taylor for the appellant, and the Attorney General for the appellee.
Crump, for the appellant.
This is a qui tam action to recover a penalty for the violation of the inspection law of Virginia. The jury have found a special verdict submitting the question of the constitutionality of the act of March 1856, to the court; and the only question in the case is, is the act in accordance with the bill of rights and constitution of Virginia, and the constitution of the United States?
1st. I shall first consider this question with reference to the constitution of the United States. And the objections to the act in this view of it is, that it is a restriction upon commerce. This connot be imposed by the government of the United States; and therefore it is clear that no State government can impose it. The constitution of the United States, as we all know, arose out of a commercial necessity; and the great object of it was to settle the very difficulties between the States which this act of Virginia has again introduced.
The question has been very much debated— whether the power of Congress to regulate commerce is exclusive. In Gibbons v. Ogden, 9 Wheat. R. 1; and in the Passenger cases, 7 How. U.S.R. 283, it was held to be exclusive. It is true that the court will not look with jealousy to the action of the States in trivial matters, where no public harm can arise from the act. And such was the case of Willson & als. v. The Black Bird Creek Marsh Co., 2 Peters' R. 245. But such a case as this cannot be considered as shaking the doctrine so fully considered in Gibbons v. Ogden, in which the court held that where a right is given by a State which is clearly repugnant to the constitution of the United States, it is void. Here the power exercised by the State is clearly repugnant to the constitution of the United States.— That gives to Congress the exclusive right to regulate commercé ; and it is idle to say that this act is not a regulation of commerce. It is not only a regulation of commerce, but it is an unequal regulation, imposing burthens upon northern ships, which it does not impose upon those of the south. And though it is called an inspection law, it is not such in the sense of the constitution; nor is it a quarantine law; but it is in fact a regulation of commerce.
If a State may enact inspection laws they must operate equally upon all who come under their operation. Congress itself is forbid to give preference, by any regulation of commerce or revenue, to the ports of one State over those of another. Art. 1, § 8, clause 6. And surely a State in enacting an inspection law, is bound by the spirit of the constitution, to provide for its equal operation upon all who are subject to it. And it will be conceded that it was the purpose of this act to establish preferences.
Again: By the 2d section of the 4th article of the constitution, clause 1, " The citizens of each State shall be entitled to all privileges and immunities of citizens in the several States." Under this provision the citizen of Massachusetts has the same rights as a citizen of Virginia, in Virginia. But the act violates this provision. A citizen of Virginia may go in his vessel to Massachusetts unaffected by this act; but a citizen of Massachusetts making the same voyage must have his vessel inspected. This provision of the constitution was considered by Justice Washington in Corfield v. Coryell, 4 Wash. C.C.R. 371, 380; and he lays down the principle for which we contend. That principle is— That with our own property and in our own persons to stand upon the same footing as a citizen. And it is no answer to say that we cannot carry slaves to another State. Mr. Madison said in 1788, that there was always this restriction. To say that the owner of a ship owning everything on board of it, when stopped on his voyage, enjoys the same privileges as a citizen who proceeds on his voyage without interruption is mockery. Chapman v. Miller, 2 Speer's R. 769.
The act is inconsistent with the 4th Article of the amendments to the constitution. This article may not apply to State legislation; but it is in the spirit of our bill of rights, and is an amendment proposed by Virginia. And though the language of our bill of rights is not quite so broad, yet they mean the same thing; and the one was taken from the other. And so the general court held in Murray's case. 2 Va. Cas. 504.
The cousel referred to numerous cases to show that the court would declare an act unconstitutional. And he referred to the Code p. 759, 761, to show that in Virginia a search warrant and a warrant for an arrest, must be founded on the oath of some person. And he cited 4 Black. Com. 162 as to police powers and search warrants.
Johnson, of Massachusetts, on the same side.
The question involved in this case is not of an ordinary character. This is but the third time it has come before the courts, and the first time it has arisen in Virginia. The case divides itself into two branches— one under the constitution of the United States, and the other under the constitution of Virginia. I shall confine myself to the first, and leave to my associates the task of discussing the second.
The question disturbed the country from 1781 until the meeting of the convention of 1787; and it appears in the constitution of the United States, Article 1, § 8, in the form of a regulation of commerce. It then rested until 1824, when the great case of Gibbons v. Ogden, 9 Wheat R. 1, settled it finally; and though there have been some subsequent cases, that decision has never been questioned.
The opinions of the men of that day afford a strong argument as to the true construction of the constitution. The resolutions of Virginia, of Dr. Witherspoon, of the Congress of the Confederation, of New Jersey and New York, all of them, went for an authority which should have the sole and exclusive power to regulate commerce.
The constitution, Article 1, § 8, clause 3, says— " Congress shall have power to regulate commerce with foreign nations, and among the several States, and with the Indian tribes." The language employed, the location in the sentence, the nature of the power, and the necessities of the country, show that this power was intended to be exclusive. I repudiate a strict construction of the constitution. Its framers were plain men, though great men; and the instrument was intended for the people; and the true question is, what is the plain and rational meaning of the language employed in the instrument.
What then is the meaning of the word " regulate" ? It is imperial, almost despotic. To regulate— to make a rule— to prescribe— to adjust. We hear of one regulator in machinery; not two. To regulate would therefore indicate supremacy; and so it was held in Gibbons v. Ogden. To be a regulator it must be supreme. In Article 4, § 3, clause 2, it is provided that Congress " may make all needful rules and regulations respecting the territories, & c." There it is clearly an exclusive power. But the doctrine of exclusiveness is found more strongly expressed in the 9th section of the 1st article in relation to the migration or importation of such persons as the States may think proper to admit. The limitation of a power in any body implies the existence of the power if not limited. And if the power is concurrent in the States, wherefore is this limitation upon the power of Congress in the particular case? A concurrent power is a co-equal power; and if there was a concurrent power in the States to direct or control the importation of slaves, then there was no necessity for this limitation upon the power of Congress.
There are in the constitution three classes of cases: First— where a power is granted in exclusive terms.— That is not the case here. Second— where a power is prohibited to the States. That is not the case here.— Third— where a power is given in general but not exclusive terms, and is not prohibited to the States. In this class of cases the power is to be construed according to its nature and circumstances. In the case of Gibbons v. Ogden, three States were contending, all claiming concurrent powers. There was therefore a necessity for the decision of the question; and it was decided, and settled the difficulty; and shut the States up to their appropriate powers.
In the case of Gibbons v. Ogden the court decided the following points: 1st. The power of Congress to regulate commerce, includes the power to regulate navigation.
2d. The power to regulate commerce extends to every species of commercial intercourse between the United States and foreign countries, and among the several States. It does not stop at the external boundary of a State.
3d. The power is general, and has no limitation but such as is prescribed in the constitution itself.
4th. The power, so far as it extends, is exclusively vested in Congress, and no part of it can be exercised by a State.
If this question is decided differently— if it is to be held that the States have the concurrent power to regulate commerce, then each may exercise the power in such mode as it pleases. They become practically independent of each other, and of the United States government; and we have got back to the days of Mr. Madison and the Virginia resolutions. Every State will have external commerce and internal commerce, with collector's offices and all the machinery necessarily attendant upon its regulation. He referred to Sturges v. Crowningshield, 4 Wheat. R. 122; Houston v. Moore, 5 Wheat. R. 1; 3 Madison Papers 1585, 1586; in the first of which cases the Chief Justice delivering the opinion of the court stated the rule to be— " Whenever the terms in which a power is granted to Congress, or the nature of the power, requires that it should be exercised by Congress, the subject is as completely taken from the State legislatures as if they had been expressly forbidden to act upon it."
It will be insisted that the States have a concurrent power over the regulation of commerce. No general concurrent power can exist. I admit there are cases where it has been exercised; but it has been simply a permissive jurisdiction, or sometimes a usurped power. In the Black Bird Creek case it was a mere contingent exercise of the power at the will of Congress. When the convention met at Philadelphia we had a government of concurrent powers, and their object was to get rid of it; and concurrent powers are not mentioned in the constitution, nor were they alluded to in the discussions.— An argument in favor of this view of the question is to be found in Article 6, § 2, of the constitution. This provision taken by itself is a very general provision; and taken in its connections very important.
The argument of noscitur a sociis, operates strongly against this notion of concurrent powers, as applicable to the regulation of commerce. " Congress shall have power to regulate commerce with foreign nations, and among the several States, and with the Indian tribes." It is not questioned that the first and the last are exclusive. The second is between them, and the conjunction " and" gives definiteness to the language used. It will be seen too that § 8, of Article 1, first states what powers Congress shall have; § 9 contains the prohibitions of the powers to Congress; § 10, gives the prohibition of powers to the States. And then comes the provision which is the great foundation of State rights, in the 4th article of the amendments to the constitution— " The powers not delegated to the United States by the constitution, nor prohibited by it to the States, are reserved to the States respectively or to the people."
If a concurrent power exists, does it extend over the whole Union? This is not pretended. Does the power of both sovereignties exist together in a State? If so— where— when— on what subject? I will be referred to the taxing power. But though this power is exercised by both governments upon the same subject, it is not for the same object; and one is by indirect, the other by direct taxation. Does the State power exist until Congress exerts its power? This is not a concurrent but a contingent power, and there are cases of this kind where the power has been exercised permissively by the State.— This brings me to the case of Willson & als. v. The Black Bird Creek Marsh Co., 2 Peters' R. 245. This is a case in which apparently a State might and did exercise a certain power until Congress exercised its power. It was a small and narrow creek navigable, but not used, and a dam was built across it for the benefit of the health of the neighborhood. This case is sui generis, and may well be referred to the police power of the States. It is the only case which authorizes the conclusion that the State may exercise a power until Congress acts, or where Congress has not acted. And of this case Judge McLean, in the Passenger cases, 7 How. U.S.R. 397, says, " It must be admitted that the language of the eminent chief Justice, who wrote the opinion, is less guarded than his opinions generally were on constitutional questions" ; and on p. 398 he says— " The language of the chief Justice must be construed in reference to the question before the court. To suppose that he intended to lay down the general proposition, that a State might pass any act to obstruct or regulate commerce which did not come in conflict with an act of Congress, would not only be unauthorized by the language used, and the facts of the case before the court, but it would contradict the language of the court in Gibbons v. Ogden, Brown v. Maryland, and every case in which the commercial power has been considered." In fact it is an interpolated doctrine, and this case is the source from whence it sprang.
Judge Tucker, the elder, 1 Tucker's Black. appendix p. 180, lays down the best classification of the powers of the government of the United States ever made. Among the exclusive powers of Congress he places the power to regulate commerce with foreign nations, and among the several States, and with the Indian tribes. Among the concurrent powers he places taxation, post offices, post roads and patents. And this classification shows the doctrine is gradually becoming obsolete; as all will agree now that the States have no concurrent power over patents, post offices and post roads.
It is said that the pilot laws are embraced in the class of concurrent powers; but this is a mistake, arising from the fact that Congress at its first session, recognized the legislation of the States on this subject. And they may be regarded as internal regulations, or as an exercise of police power. As to bankrupt laws, though the States may enact such laws, they are wholly inoperative beyond the limits of the State. The power of Congress is to pass a uniform law of bankruptcy. The States have no such power. And in like manner the power of the State to punish counterfeiters of coin, is but an internal regulation not extending beyond the limits of the State.— And the power over weights and measures belongs to the police power. The power over the militia is now held to be exclusive in Congress, except as to appointing officers and training; even the uniform must be according to the Congressional pattern. If this power is not exclusive, then why this reservation of the power to the States to appoint the officers and to train the militia.
The result of the argument is that this concurrent power in Congress and the State legislatures, does not exist except in a few cases in which it may be exercised by the latter as matters of police. And this is the doctrine of the Passenger cases, 7 How. U.S.R. 283, 390. But I mean my argument to refer to the power to regulate commerce. There may be some such powers on other subjects; but the powers vested in Congress by the 8th section of the 1st article of the constitution are exclusive.
The only remaining enquiry is— whether the act of March 1856, under which this action was instituted, is a regulation of commerce. It is an act of assembly; and therefore a regulation. Then does it regulate commerce? Commerce is the exchange or sale of articles; and here was a vessel carrying on commerce.
The act gives a preference to ports of one State over those of another State; and this is a violation of Article 6, § 9, of the constitution. Further the ports of the State of Virginia have a preference over the ports of other States; and, which is no less objectionable, the southern ports have a preference over those of the north. And the language of the act will include the case of a vessel coming from Baltimore. It says, vessels departing from the waters of Virginia.
This act is not a police or internal regulation of the State. I concede the whole doctrine that the States have a right to make their own police regulations. But what is the meaning of police? It comes from polis a city, and thus extended to the officers of the city appointed to keep the peace. The term has been subsequently extend to larger bodies— to a State— and its police regulations. But from its very nature a police regulation can have no effect beyond the State. Harbour laws, health, quarantine, and the like are merely matters of police. And so long as a regulation of this nature is limited to the State it may be police; but the moment it extends beyond the State it ceases to be police, and becomes a commercial regulation. And thus where a regulation of a State extends to property or persons beyond the State then it is a commercial regulation. New York v. Miln, 11 Peters' R. 102. This was a decision on the subject of police regulations; and they were defined to be a law which relates to the whole people of the State, or some one in it; and the operation of which is within the State and upon the persons and property within it. But in our case Baker was a citizen of Massachusetts, transiently here, and the vessel was owned in Massachusetts, and here for a brief space. An act affecting it cannot therefore be a police regulation.
If this act is to be considered an inspection law, then it violates § 10 of the 1st article of the constitution; as the tax which it imposes for the inspection of the vessel is not directed to be paid into the treasury of the United States.
The act is unconstitutional because the vessel was enrolled and licensed under the laws of the United States; and under that law had a right to go into any of the waters of the United States. This point was decided in Gibbons v. Ogden. And the act is further unconstitutional because the proceeds, or a part of them, are to be paid into the State treasury to constitute a fund to be called the fugitive slave fund. In the Passenger cases, 7 How. U.S.R. 283, 412, it was held that commerce cannot be taxed for the benefit of any State institution. And the act is further unconstitutional because it affects foreign commerce, it being applicable to the British North American colonies.
Attorney General for Appellee.
The record in this case presents a single question. Is the act of March 1856, constitutional?
It is a grave question— and the court upon well settled principles will not decide that a law is unconstitutional, unless it is plainly so. Ch. J. Marshall delivering the opinion of the court in the Dartmouth College case has said, that the Supreme court had on more than one occasion declared " that, in no doubtful case, would it pronounce a legislative act to be contrary to the constitution." 4 Wheat. R. 518, 615. Like views have been expressed by other judges— but further citations of cases are unnecessary.
The law is said by counsel to be unconstitutional on several grounds; which will be considered in their order.
First. Is the law, as it is contended, repugnant to the 4th amendment of the constitution of the United States?
I insist, that amendment has no relation to the power of the States, but is designed only as a limitation on federal power.
The history of these amendments shows this beyond doubt.
In the convention of Virginia, which ratified the constitution, by a very small majority, the minority led by Patrick Henry and George Mason, alarmed at the powers proposed to be vested in the government, insisted on the adoption of a Bill of Rights and of important amendments. The majority agreed that these should be recommended for adoption, but should not be made the conditions to ratification.
The 14th article of the Bill of Rights so proposed, is the foundation of the 4th amendment to the constitution. See Journal of Convention, Supp. 420.
New York, North Carolina and Rhode Island followed in like recommendations, pp. 429, 442, 456.
These amendments were born of a jealousy of federal power; and were proposed by the opponents of ratification, as restraints upon it. Such restraints had already (at least as to Virginia) been self-imposed. It is absurd to suppose, that Mason and Henry, in their zeal against unlimited federal power, should propose limitations upon the States. They were supplemental to the previous grants of power to the federal government, and from abundant caution, sought to limit them from being made instruments of wrong by improper construction.
This is more clear from the association in which this amendment is found. The other amendments, or most of them, in terms refer to the federal government; and those associated with them, all from a common source, must be referable to the same government.
This view is sustained by many cases, but I refer only to three late cases. Barron v. Mayor and City Council of Baltimore, 7 Peters' R. 243; Fox v. State of Ohio, 5 How. U.S.R. 410; Smith v. State of Maryland, 18 How. U.S.R. 71.
The law cannot therefore be unconstitutional, because of its violation of the 4th amendment of the constitution of the United States, because that amendment does not restrain State power; and no State law can violate it.
But it is maintained, that the law is a violation of § 10 of the Bill of Rights of Virginia; which is like the 4th amendment already considered; and, as the latter is more comprehensive in its terms, it is argued, that the former should be deemed equivalent to the latter.
This view is untenable. The 4th amendment being fifteen years posterior to the Bill of Rights, the court would consider, that wherin it was more comprehensive, its framers sought to remedy defects, which existed in the article of the Bill of Rights.
The § 10 of the Bill of Rights was obviously framed with reference to the general warrant of the Secretary of State to search for the authors of North Briton, No. 45; which gave rise to the case of Money v. Leach, reported in 3 Burr. R. 1742, and to a resolution of the House of Commons in 1766.
Earl of Halifax, Sec'y of State issued a warrant, directed to four of his majesty's messengers in ordinary, to make search for the authors, & c., of the North Briton No. 45, and them having found, to apprehend and seize with their papers, & c. The premises of Leach were searched, and he brought suit against the messengers, who plead the warrant as their authority. The court decided against the warrant upon the ground of the " uncertainty of the person, being neither named nor described. "
Lord Mansfield refers to the common law, under which in many cases, arrests might be made without warrant, and to special acts, giving authority to apprehend under general warrants; as warrants to take up loose and disorderly people; and then says— " It is not fit, that the receiving or judging of the information should be left to the discretion of the officer. The magistrate ought to judge, and should give certain directions to the officer."
The whole case, decided in 1765, turned upon the uncertainty as to person and offence, which was a matter for judicial decision, and not to be left to the discretion of the ministerial officer.
The House of Commons (Parliamentary Hist. Vol. 16, p. 207 to 210) passsed a declaratory resolution— that general warrants, unless by act of Parliament, were illegal; and if served on a member of Parliament, it was a breach of privilege.
The notoriety of these proceedings, and the well known fullness of Mason's mind, in matters of constitutional learning, make it certain, that § 10 of the Bill of Rights of Virginia was framed with reference to this case. Looking to the wrong done, which was redressed in the case of Money v. Leach, we deduce, that the clause was intended to prevent the delegation of judicial functions to a messenger or officer, and had no reference to legislative power. The resolution of the House of Commons, expressly reserves the power to Parliament; and how then can this § 10, be regarded as a restraint upon the legislative power?
The power of the Secretary of State seems to have been conceded, to issue warrants in some cases. That power was a judicial power. The objection made was, that he delegated the judicial function to a messenger of the court.
The Bill of Rights declares, that general warrants, whereby an officer or messenger (and in the use of that term is a plain reference to the case of Money v. Leach, ) may be commanded to search places without evidence of a fact committed, or to seize persons not named, or whose offence is not particularly described, & c., are grievous, & c.
Now this section refers to warrants which are judicial forms of process. This act of 1856 is not a warrant; is not a general warrant. The restraint is in terms on judicial not on legislative power, prohibiting warrants by the judicial power, or by the executive in exercise of judicial power.
This section does not inhibit private persons to arrest a known felon. How then can it be held to forbid a law to authorize officers to search vessels for stolen or absconding slaves? or even to arrest the master of the vessel, if a slave be found on board? He would be taken flagrante delicto, by the officer; as at common law, a private person may arrest a known felon.
It is obvious, that had the purpose of the section been to forbid legislative action, this language would not have been used. A legislative warrant to seize or search has no meaning in our constitutional language; and the term " warrant" has no relation to the exercise of legislation; which can only speak or act by resolution or by law.
It is fair to remark, that if the section applied to the legislature, the act in question so describes the place to be inspected and its character as to admit of no mistake, and leave nothing to the discretion of the officer.
The consequences of the construction insisted on would be absurd.
The patrol laws, for domestic police, authorize seizure and search contrary to this section. Are all these unconstitutional? Our health laws require a pilot to enquire into the health aboard a vessel coming into port; and to compel her to perform quarantine, for which he shall be paid a fee, Code of Va. ch. 92, § 40. Is this inspection unconstitutional? Look at our quarantine laws. Code of Va. ch. 86, § 16 to § 24. Look at our inspection laws for flour. Ib. ch. 87-8. Are all these unconstitutional?
Where is the difference in principle between these, and the act in question? If you may inspect a vessel to keep out disease, why not, to keep a slave from escape, with or without the privity of the master of the vessel?
But it is said, this act imputes crime. But this is not the fact. If crime is ascertained action is to be taken. If not, the inspector gives the certificate, and the vessel goes upon its way. If he finds a slave on board, and it is admitted, that at common law, a private person may arrest the criminal, why may not an officer legally authorized for the purpose? Had the law authorized a justice of the peace to inspect, and to arrest on discovery of crime, that would have been legal. May not the law authorize its appointed officer to do the same? The governor may offer a reward for arrest of fugitives from justice. This law only authorizes certain officers to do the same. See 4 Black. Com. ch. 21, p. 290, 293.
Suppose an inspector of flour finds unsound flour offered for sale, would the fact that it was a criminal offence, make it unconstitutional to require the inspection by which he might be enabled to discover the crime?— Wherein does this differ from the power of the inspector under this law?
The constitution of the U.S. recognizes the validity of inspection laws by the State. This law requires inspection, to prevent the improper exportation of an article from the State. And how else could it be prevented than by such a law?
This law is then not in conflict with the 4th amendment, nor with the § 10 of Bill of Rights, which is confessedly less extensive in its terms.
Under the federal law, Brightley's Dig. 142, § 17, power is vested in certain officers to search vessels for goods not properly on board; in order to execute the revenue laws, & c. This is done without warrant; and yet the argument of counsel in this case, would lead to the conclusion that these laws violated the 4th amendment, because in effect they are general warrants for search and seizure. And if these laws, which have never been contested on this ground, are not prohibited by the 4th amendment, how can this act be denounced as void under the § 10 of Bill of Rights, which is less stringent than the 4th amendment? If these federal laws are valid, this therefore is— a fortiori.
One case has recently been decided, bearing strongly on this point. In Smith v. State of Maryland, 18 How. U.S.R. 71, a law of Maryland authorizing the inspection of vessels in certain cases was held valid; though it was contended it was void by reason of the 4th amendment of the constitution, and a provision of the Bill of Rights of Maryland, similar to that of Virginia.
In conclusion on this point, it may be questioned, whether the general declaration of a Bill of Rights is as operative as an article of a constitution. The former declares general principles; but does not, as the latter, specifically prohibit action; and it may be going too far, to give a special efficacy to a generality in a Bill of Rights, as if it were the more sharply defined provision of a constitution. Unless, however, the true purpose of the Bill of Rights is defeated by a law, its generality will not be forced into an avoidance of a law, not clearly within its terms.
Second. Is the act of 1856, unconstitutional, being, as is contended, in violation of Art. 4, § 2, clause 1, of the constitution of the United States?
" The citizens of each State shall be entitled to all privileges and immunities of citizens in the several States."
The plaintiff in error claims exemption from this law, under this provision, because citizens of Virginia and other southern States are exempt from it.
What are his rights under this provision of the constitution? The " privileges and immunities" are those which belong to the citizen, as such. Such as attach to citizenship, and to nothing else as a source of " privilege or immunity," cannot be taken away under this provision.— These indefeasible rights, which belong to a citizen, as such, which government does not bestow, it cannot take away.
There are privileges, which government bestows; and which it may qualify or take away: such as the trial by jury, an examining court privilege, habeas corpus, & c. There are privileges which a citizen of a State possesses, which one of another State has no right to; the right to vote— the right to hold office— these clearly may be given to a citizen of a State, and be denied to citizens of any other. The right to hold office is denied to any but citizens of Virginia. Surely this is not unconstitutional. The right of suffrage springs from residence and citizenship. Surely, a denial of it to a non-resident, who is a citizen of another State, is not unconstitutional. A resident citizen may sue without giving security for costs; a non-resident may be required to do so. In these cases the discrimination rests not on a distinction between citizens of the particular State, and one of another State, but rests on the further condition— that of residence.
The precise object of this provision must therefore be examined.
I apprehend it means only this: It lifts from the citizen of other States, the incubus of alienage. He cannot be treated as an alien— he must be treated as a citizen. All disability that attaches to alienage, is forbidden; all privilege that attaches to citizenship (merely), is secured. When in other respects the citizen of another State stands on the same platform, with a citizen of Virginia, she cannot deny the citizen right to the one, which she allows to the other. If a citizen of Virginia, resident in Virginia, may enter land in the land office of Virginia, she does not violate the constitution to deny the right to a citizen of Massachusetts, non-resident in Virginia. A personal service in case of a citizen resident in Virginia, is essential to a judgment, upon which there may be execution. In case of a citizen of another State, non-resident of Virginia, an attachment, without personal service, may be issued and property sold without personal judgment.
These are all cases, where the constitution is not violated, because, the discrimination is based on the condition of residence, and not of citizenship.
The error in the reasoning on the other side, is in the assumption, that all " privileges and immunities," issue from citizenship; whereas, many issue from residence, some from the intention of a citizen in doing a particular act; and are allowed or denied, according to the circumstances of each case.
If A takes his ship south, and B his ship north, both being citizens of Virginia, the legislature may discriminate between them, not as citizens, but on account of the acts done by each.
This act of 1856, subjects a citizen of Massachusetts to inspection, whose vessel clears for a northern port; and a citizen of Massachusetts whose vessel clears for a southern port, is exempt from its operation. It does not discriminate between the persons, but between their acts.
By the Code of Va. ch. 148, § 5, a citizen is liable if he takes away a slave in his vessel, whereby he is lost, whether carried away wilfully or not. The act of 1856 provides for the security of slave property carried away in a vessel owned in whole or in part by a citizen or resident of another State. In the one case, the law can redress the wrong done, by personal action against the resident citizen; in the other, it can only do so by proceeding in rem, against the non-resident. In principle, where is the difference, between the discrimination made in this case, and that confessedly right, in respect to the remedy by attachment— a proceeding in rem, against a non-resident?
The object of the law is to protect slave property. If a resident citizen takes away a slave, he and his property are here to answer for the injury. If a citizen of Massachusetts does so, he withdraws himself and his property from the reach of the owner, in the very act of wrong doing. The remedy and the right are destroyed by one and the same act. Has not the State the right, looking to the practical difficulties in the way of redress for wrongs done her people, to adopt means adequate to their protection? We do not attach vessels of our own residents, because they and their property are here to answer for the wrong. We attach and inspect the vessel of the non-resident, because neither he nor his property will be here, to answer for the wrong. The law does not discriminate between the persons, but between the circumstances attending the acts done by them, and attaching to their place of residence, and their respective liabilities for redress of wrongs done by them to our people. The citizen of Massachusetts is by his residence exempt from the redress proper to the wronged slave owner. The citizen of Virginia is not. The law seeks to put them on the level of like liability; and to subject them each to a remedy fitted to the peculiar condition of each.
But it is argued, that the act makes a distinction between vessels according to their destination, which is fatal to its validity.
This is not an objection, founded on the provision of the constitution under discussion, for this provision relates to citizenship — not to commerce or vessels. But it shows, that the discrimination is one really not based on citizenship at all — but on the acts done by these citizens.
If the slave concealed in the vessel goes to a northern port, will the owner ever recover him? and if so, at what expense? It may be of life— at least, of a large proportion of his value.
If the slave goes to a southern port, he is not thereby free, and may be more readily recovered— at no hazard of life, and at less expense.
The discrimination made rests on these patent facts; and shall it be said that Virginia must legislate for the security of her people, with her eyes closed to facts, which all the world knows? Must her legislature be blind, in order to be constitutional in its action?
I have argued this question on principle; for no adjudications have been made which can guide the investigation.
But I refer, as sustaining the construction given to this provision of the constitution, to 3 Story on Cons.§ 1800; Corfield v. Coryell, 4 Wash. C.C.R. 371, 380; Conner v. Elliott, 18 How. U.S.R. 591; Tatum v. Wright, 3 Zabriskie R. 429; Va. Convention 1788, p. 408.
Third. The next objection to the act of 1856, is, that it is a regulation of commerce, and that the power to regulate commerce is exclusive in Congress. C.U.S. Art. 1. § 8, c. 3.
Gentlemen object to any very strict construction of the constitution.
It has been said by the highest authority, that the federal government is one of granted powers; and its power must be shown either expressly given, or necessarily implied.
This results from the character of the powers granted. The power to lay and collect taxes is given; and yet that to borrow money is not implied, but is expressly granted. Other instances might be cited, all tending to show, that the framers of the constitution meant to leave little to implication, and to indicate by express grant the powers intended to be conferred on the government they created.
The grant of powers to the federal government, as a matter of history, was reluctantly made; and this spirit indicates, that they should not be extended, except by necessary implication, from express grants. Those granted were rather matters of expediency— those reserved, were matters of necessity.
Besides, all the powers now vested in the general government, were previously exercised by the State governments. The people of the several States were the grantors of power to their own separate governments, and to the general government. The grants of power to the latter, took from those previously exercised and held by the former; and to vest in the one, and divest the others of powers, there must be a clear and manifest purpose in the act of the grantors.
After the constitution was adopted, amendments were demanded. The 9th and 10th amendments were demanded in substance by Massachusetts, Rhode Island, New York, Virginia, North Carolina and South Carolina; were proposed in their present shape by the 1st Congress under the constitution, and ratified without a dissenting State.
I hold therefore, that upon a claim of power by the federal government the onus is on the government to show its existence by express grant, or as a necessary implication from some express provision. If a power be claimed by a State, the onus is upon those, who contest it, to show that the whole power has been granted to the United States, or that it has been prohibited to the States.
The States are in, of their original title to all power, unless it can be shown, that they have divested themselves, by a delegation of it to the federal government, or by a self-denying inhibition to be found in a stipulation of the federal compact.
It has been said in the argument of counsel, that the States derive their powers from the 10th amendment! This is, I humbly submit, a grave error. The States derive no power from the constitution. They acquire nothing by it. They grant power out of themselves by it, but get nothing from it. They grant to the federal agent— the common agent of all the co-pactors; and reserve all the undelegated authority to themselves and to their separate governments. This 10th amendment is the evidence of their reserved powers, not their source.
Let it be remarked therefore, that in order to show, that the act of 1856 is unconstitutional, it must be shown, either that the power exercised has been prohibited to the State— or that it is a power wholly transferred to the federal government.
It is not contended, that there is any prohibition in the constitution, under which this law is invalid.
Has the power been granted— and so granted, as to leave no residuum to be exercised by the States?
I concede the grant of power to the federal government " to regulate commerce."
But does that grant consume the power, with no residuum to the States? Is the grant, exclusive? Is it such, as by implication, excludes and forbids the regulation of commerce by a State? And I insist, that the onus is on the other side, not only to show the grant, but that the grant excludes the State from its exercise.
That a grant of power is not necessarily exclusive is clear. To be such it must have a double aspect: to give to the one— and to prohibit to the other.
In the Federalist No. 32, Gen. Hamilton speaks of a " concurrent and co-equal authority," between the two governments.
In itself, the mere grant of power to me, is not prohibiting the rights of every other, to exercise it. It may or may not have the character of a monopoly power.
C.U.S. Art. 1 § 8, c. 1, contains a grant of power to lay and collect taxes. This does not exclude the State power of taxation on the same subjects. When the State is to be restrained in this, the constitution in express terms prohibits the laying of duties. C.U.S. Art. 1 § 10, c. 2. So as to coining money. The grant to the general government, is followed by an express prohibition to the States. C.U.S. Art. 1, § 10, c. 1. So as to the war power. C.U.S. Art. 1, § 10, c. 3.
Now if these powers are exclusive by virtue of the grant, why the express prohibition to the States?
And if the power to coin money, to lay taxes, be not per se exclusive, and prohibitory of State power in respect to money and taxes, why shall the inference be made, that the power to regulate commerce is exclusive and prohibitory?
In the case of punishing counterfeiters of coin— a power given to the United States; C.U.S. Art. 1, § 8, c. 6, the Supreme court in Fox v. State of Ohio, 5 How. U.S.R. 410, discuss the question of the conflict of powers in a mode which goes far to sustain my views.
But it may be said, the power to borrow money on the credit of the United States, is surely exclusive. True— but for this reason. The States severally never had power to borrow money on the joint credit of all. The grant does not exclude each State from a concurrent exercise of this power. The State never having had title to it, could not reserve it, unless granted away or prohibited. Had the power been only " to borrow money," leaving out the last words " on the credit of the United States," then it would not have been exclusive.
The same reasoning applies to all other matters, which grew out of the existence of the new government, and the exercise of its peculiar powers. The States not having previously held such powers, their claim to them, as reserved powers, unless prohibited or excluded, cannot have any foundation.
It is asked however— Is not the postal power exclusive? The mere grant of the power, does not prohibit it to the States. Suppose the government fails to establish a postal system, must the States have none? Mayt he government enact the fable of " the dog in the manger," and the States have no relief?
This course of reasoning and illustration brings me to this point:
Exclusive power in Congress may exist,
1st. Where the grant to Congress, is followed by a prohibition to the States.
2nd. Where from the nature of the power granted, the States had no original title; and the power itself comes into being, as an offspring of the government created by the constitution. Take the case of borrowing money— and others which might be cited. C.U.S. Art. 1, § 8, c. 2, 9, 10, 14, 15, 17; Art. 4, § 3, c. 1, 2.
3rd. Where the exercise of the granted power, would be in conflict with its exercise by a State, there the granted power in exercise, excludes the State from a concurrent exercise of the power.
In the third class of cases, it is the exercise of power which excludes State power; not its grant.
This results from the provision, that the laws of the United States, passed in pursuance of the constitution, are the supreme law. (But only such, as are in pursuance thereof.) The law passed by Congress under the granted power is supreme to all State law; but until it is passed, until the power is put forth in the form of law, it overrides no State law, passed in exercise of that power, where the State is not prohibited to do so by the constitution. In such cases the State law stands, until the supreme law of Congress, with which it conflicts, is passed.
After this general view, I proceed to state the points for which I shall contend.
1. The States are not forbidden to regulate commerce, but may do so, subject to the supremacy of any law of Congress on the same subject, with which the State law conflicts.
2. Congress has passed no law, with which the act of 1856, is in conflict.
3. The act of 1856 is not a regulation of commerce.
1. It is clear there is no express prohibition to the States to regulate commerce. In other cases there is, as I have shown: Expressio unius exclusio est alterius. — Duties on imports are a regulation of commerce. If the power to regulate commerce were per se exclusive, why was it necessary to forbid to the States, that which is a regulation of commerce, viz: duties on imposts .
Even the power to pass uniform bankrupt laws has been held to be not exclusive. Ogden v. Saunders, 12 Wheat. U.S.R. 369; Boyle v. Zacharie, 6 Peters U.S.R. 348, 635. But a State, it was held, could not by its bankrupt act pass beyond its own limits and bind a citizen of another State. And this, from the stringency of the prohibition as to " impairing the obligation of contracts." But in Clay v. Smith, 3 Peters U.S.R. 411, if a citizen of another State became voluntarily a party to a proceeding under the bankrupt. law, he was bound thereby; and his debt was released.
The power is " to regulate commerce." It is in its constitutional sense, the same as to make " rules and regulations" concerning commerce. The 17th clause of the same section gives Congress exclusive power of legislation; and other clauses give power to establish a uniform rule, and uniform laws. How easy would it have been to use one or other of these terms in the clause under consideration? And is not the omission indicative of a purpose not to give exclusive power?
Suppose Congress had made no regulations of commerce; were the States debarred from doing so?
In truth, what law of the State may not in some sense affect, and thus regulate commerce? Quarantine laws, inspection laws, are all regulations of commerce. Pilot laws likewise. Can the State pass none of these, because they regulate commerce?
These views operated on the minds of the framers of the constitution; and it must have been seen, that the States could not avoid regulating commerce by their legislation, either directly or indirectly; and hence for greater precaution, they recognized as reserved to the States, by a significant phrase, the power to pass and to execute its inspection laws. See 3 Mad. Papers, 1556, 1569.
It is obvious then, that had the mere grant of the power to regulate commerce, without its exercise, operated as a denial of such power to the States, it would have been fraught with evils which the sagacity of the members of the convention would have foreseen. But this clause was adopted, nem. con. Can it be believed, they unanimously, contemplated and intended such a construction of the grant of this power?
Counsel have relied on the clause as to the migration and importation of slaves, C.U.S. Art. 1, § 9, c. 1; and argue that the States could not prohibit such importation. It seems to me otherwise. As a matter of history, many had forbidden it before; and the constitution only forbids a prohibition by Congress; leaving to the States to do as they pleased; as they could have done, had the clause not been adopted. In Groves v. Slaughter, 15 Peters U.S.R. 499, it was decided, that Congress could not interdict the inter-State slave trade; but the States might do so. See also as to this point, Gibbons v. Ogden, 9 Wheat. U.S.R. 1.
The view taken, answers the argument, that in the nature of things, there can be but one regulation. I may concede, there cannot be two in operation at the same time. But what I insist on is, that where the supreme regulator is still, the lesser one may be in legal operation. In the passage cited from Madison Papers 1585, by counsel, Roger Sherman does not say, there may not be two sets of regulations. On the contrary, he admits there may be. He says, " The power of the United States to regulate trade, being supreme, can control interferences of the State regulations, when such inter ferences happen; so that there is no danger to be apprehended from a concurrent jurisdiction." He anticipates State regulations— a concurrent jurisdiction— a possible interference between them— but no danger because of the supremacy of those of Congress.
The true construction of the clause is, that the power of Congress when exercised is supreme and controlling; but it is not exclusive.
Several cases have been cited on the other side. The great case of Gibbons v. Ogden, 9 Wheat. U.S.R. 1; I refer to the comments on this case by Ch. J. Taney, in the " Passenger cases, " 7 How. U.S.R. 283.
That case only decided, that the law of New York prohibiting vessels from coming into its waters from other States, was in conflict with the law of Congress regulating the coasting trade; and was therefore invalid.— It did not decide that the grant of power to Congress " to regulate commerce," made the act void; but that the conflict of the act, with the law of Congress passed under its power, made it inoperative.
The Passenger cases, 7 How. U.S.R. 283, and Chapman v. Miller, 2 Speer's R. 764, put the avoidance of the State laws on the same ground.
In the Black Bird Creek case, 2 Peters U.S.R. 245, though the State law excluded commerce from a navigable creek, it was held to be valid, and not in conflict with the constitution; and so to be held until Congress passed a law contravening it. This decision settles the question in favor of the concurrent power of the State to regulate commerce, and that such are valid, until Congress by the exercise of its supreme power contravening State legislation, invalidates it.
In the " License cases, " 5 How. U.S.R. 504, Ch. J. Taney held that the pilot laws do not derive their validity from congressional legislation, but are valid under State power.
I refer further to Cooley v. Board of Wardens of Philadelphia, 12 How. U.S.R. 299; City of New York v. Miln, 11 Peters U.S.R. 102.
In my view of the case, I need not insist upon any thing further than reason and the cases settle, that there is power in the States to regulate commerce which will be valid in exercise, until the exercise of the concurrent power by Congress supersedes, by contravening it.
The law is not void, for conflict with the constitution.
2. I now assert, that the law is valid, as a regulation of commerce, because it is in conflict with no law of Congress.
It is said however, that it is in conflict with the enrolling act, § 9, Brightley's Digest 138.
If the State has power to regulate commerce it may be restrained by a conflicting law of Congress. But a law not contravening the State law, does not make it invalid. The regulations of State and Congress may consist, if not repugnant.
The license act requires a license to all coasting vessels; but it does not forbid other restrictions by a State. Congress may impose other restrictions; so may the State. Concede the right of Congress to annul the State regulations. That annulment does not result from some regulation by Congress, operating on a vessel, which is not affected by the State law. To work annulment, there must be conflict and such repugnance as to make co-existence impossible.
Ch. J. Marshall in Gibbons v. Ogden, ubi supra, says: " The fact that the same means may be used by the two governments does not prove that they are to be referred to the same power."
Now if Congress may not, or has not by its law, forbidden quarantine or pilot fees, when has Congress forbidden, or how can it forbid a fee for inspection of a vessel, not referring to commercial regulations, nor in conflict with any, but as a matter of police, and to save slave property?
3. This brings me to the real ground on which this case should rest. It is not a regulation of commerce, that this act of 1856 seeks. It is a regulation of internal police.
It is admitted on all hands, that there are powers, reserved to the States, under the name of " internal police." The power to regulate commerce in Congress, and this power of internal police in the State may interfere; but neither can be superseded by the other.— The reserved power is as important and as perfectly conserved by the 10th amendment, as the granted power. To permit the granted power to trench upon the reserved right, is more dangerous, than the inconvenience of allowing the reserved to restrict the granted power. No regulation of commerce, for example, can debar the State from its sovereign right to protect the life of its people, by quarantine laws; and an intrusive regulation of commerce, which would force disease into the State, may be forbidden by her sovereign power.
And it follows, that as the means necessary to give effect to the granted power, are presumed to be within the powers of Congress, so a fortiori the means necessary to conserve the reserved right, are within the compass of State authority.
The true construction in the case of such conflict, is that in so far as the regulation of commerce trenches upon the police power of the State, it is void; and vice versa. Whatever is bona fide a legitimate exercise of the police power will be valid, though it interferes with the commercial regulation. Whatever goes beyond this legitimate bound is void.
By reference to the declaration of rights of the Continental Congress, dated Oct. 14, 1774, Journal of Congress, vol. 1, p. 28, res. 4, it will be seen, that the distinction is drawn between the Imperial power of Parliament to regulate commerce, when " bona fide restrained " to that object, and to securing commercial advantages to the country; and the power to regulate all cases of " internal polity, " indefeasibly residing in the colonies; and further, that this regulation of commerce did not draw with it the power of taxation.
This historic distinction, on which the revolution of 1776 was based, presided as a supreme idea in the convention of 1787; and marks the line between the power of Congress to regulate commerce, and that of the State to control its internal polity. And in the case of Gibbons v. Ogden, ubi supra, it is laid down by Ch. J. Marshall, that this distinction is a sound one— that though the same means may be used by Congress and the State it does not follow, that they are to be held as the exercise of the power to regulate commerce by both; that Congress must recognize the quarantine and health laws of the State, and cannot by commercial regulations interfere with them; and that it can control them, only so far as may be necessary for the regulation of commerce. See his opinion 203 to 206.
If, then, a State may protect the life and health of its citizen, is it not equally a right of the State to protect his property from being carried off by an irresponsible party? And if it be constitutional, because necessary for the purpose of preserving health, that a State inspector should board the vessel and examine it, is it the less constitutional for a State to require an inspection of an out going vessel, to see whether under the license of a Congressional regulation of commerce, it is not violating her criminal law, and stealing the property of her citizen?
A State may tax a licensed vessel, as the property of her citizen. The license is under commercial regulation— her tax under her internal polity. A vessel may bring in gunpowder under her license; but the State may forbid its being brought ashore under circumstances dangerous to her people. Brown v. State of Maryland, 12 Wheat. U.S.R. 419, opinion of Ch. J. Marshall, p. 443-4.
Now I admit, that in the broadest sense of the term, all these State police regulations may be regarded as regulations of commerce, because they affect commerce.— But they are not intended as such, and regulate commerce incidentally, or rather accidentally.
Congress cannot by licensing a vessel, give it license to commit crime against a State. The State by preventing it from committing crime, does not revoke her license, or even restrict its legitimate province. Congress may give license, but the State may forbid its use to the injury of her people. As Congress has no power to license a vessel to violate State law, so it is no infringement of the license to require the vessel to forbear from crime, or to be inspected to see if it is being used to violate a law of the State, or to secrete and carry away a citizen's property.
The license acts on the vessel as a carrier— as an agent of commerce. The State law acts upon its owner as a man capable of wrong doing, and on his vessel as an available instrument for the purpose. The orbits of the two powers are thus separate, and distinct; and though tangential, do not intersect.
The distinction drawn by the Supreme court in the case of Brown v. State of Maryland, 12 Wheat. U.S.R. 419, is illustrative of the distinction I make in this case. When the tax power of the State begins, as to an imported article, and the right of the importer under the duty paid on the imported article ceases, was considered there. In the transitus it was beyond the reach of State power; as soon as it passed it, that power attached to it.
Take another case— that of incendiary publications, sent through the mail. Congress may authorize the carriage of letters and papers by man; and the State cannot prevent it. But the delivery and circulation of such as are dangerous to the State, she may forbid; and Congress cannot enforce the delivery or circulation. The limit between the postal power, and the police power in that case, is in strong analogy to this case.
But authorities are not wanting to sustain this view. The Supreme court in City of New York v. Miln, 11 Peters U.S.R. 102, decided, that a law of New York, which requires the master of a vessel entering the port of New York, to make a report in writing to the Mayor, containing the names, ages, last legal settlement of every passenger who shall have been on board during the voyage, and inflicting a penalty for failure, was valid and constitutional as a regulation of police; and was not a regulation of commerce. And Judge Barbour in delivering the opinion of the court, p. 140, says— " We suppose it to be equally clear that a State has as much right to guard by anticipation against the commission of an offence against its laws, as to inflict punishment upon the offender after it shall have been committed" ; and this was said as to a right to protect the State against the ingress of pauper foreigners. The whole case is conclusive of this.
The same court in Smith v. State of Maryland, 18 How. U.S.R. 71, held, that a State law forfeiting a licensed vessel attempting to take oysters in the waters of Maryland, was valid. If a State law may forfeit a vessel for taking oysters, why not for taking a slave? And if as in City of New York v. Miln, a State may take measures to prevent crime, as well as punish it, why may not the State inspect a vessel to see if there be stolen slaves on board, if it may forfeit for the theft if they be found?
This power to regulate commerce, what is it? " Regulate" is not so comprehensive as " legislate." It is, as already remarked, equivalent to the terms " to make rules and regulations respecting." It has reference to order and method. It does not create— nor can it destroy; it only gives order to a pre-existing thing. It is passive, until other action brings the subject into being, which it is to control. To regulate commerce does not carry with it the power to do every thing which may influence commerce, or to forbid every thing by others which may do so.
Each house may regulate its own proceedings— Congress may make regulations for the land and naval forces— regulations for the territories and other property of the United States— may regulate the value of coin, and may regulate commerce. Regulation relates to things— law applies to persons. The instruments of carriage, the modes of carriage— the regulations for outgoing and entry of vessels— these are regulations of commerce— regulations of the thing called commerce. But the persons who carry it on— the things carried— are not commerce; and are within State jurisdiction. The license of the vessel avails to make it a legal instrument of carriage. Its use as such, may be regulated by Congress. But the vessel and the owner, and the property taken on board from the State, cannot be withdrawn by the license from the jurisdiction of the State. The vessel may be taxed; the owner may be punished for crime; and the property he shall take away out of the protection of the State, she may inspect, to protect and secure the rights of her citizens.
If A swears a licensed coaster has his slave on board, can the license save it from search? And how can the license forbid the State, as a precautionary measure, from searching to prevent the carrying away of property illegally?
This law of March 1856 does no more than this. It does not touch the license of the vessel. But it does not permit the license to conceal crime, or to warrant the abduction of a slave. It operates on the vessel— the owner— and property, all of which are within and subject to its " internal polity." It does not hinder the voyage of any vessel, whose hold does not contain a fugitive from labour or from justice. It inspects, to prevent crime, or injury to its citizen by the loss of his slave.
But it is said, the law is unconstitutional, because the inspector is authorized to charge a fee for inspection.— That point does not arise in this case. But if it did, " The License cases, " 5 How. U.S.R. 581, Ch. J. Taney's opinion; and " The Passenger cases, " 7 How. U.S.R. 414, J. Wayne, hold quarantine fees to be legal, when charged against the owner of the vessel. And if for quarantine purposes, a fee for an inspection may be required to be paid, why not in this case, if it be as we have shown, a legitimate subject for the police power of the State?
It is further objected, that the law discriminates between vessels. This discrimination and the reason for it have been already explained.
In Cooley v. Board of Wardens of Philadelphia, 12 How. U.S.R. 299; Smith v. The State of Maryland, 18 Id. 71; City of New York v. Miln, 11 Peters U.S.R. 102, it was held that pilot laws, making a discrimination between home and other vessels are valid. The police power may discriminate; and the propriety of the discrimination made, if it be a police regulation, cannot be judicially enquired into.
It is said again— that as Baker is out of the State, and his vessel too, this law is not a police regulation, because operating on person and property beyond the State. It is true, the person and his vessel are now beyond the State. But they were once here; and the act for which this prosecution is made, was done against this police law, while they were within the jurisdiction of Virginia.
It is said, that as a part of the fine goes to the State treasury to constitute a " fugitive slave fund," it is a tax on commerce. But this is not so. It is a fine recovered by action, for an offence against a law of the State.— What the State does with the penalty it is not necessary or proper to enquire.
It is submitted that the law is a due exercise of the police power of the State, and is valid.
If the views of the other side prevail, the construction insisted on, will be fraught with danger to our institutions; for it involves the absorption under the power to regulate commerce, of all power which may directly or indirectly influence its operations; and thus will give to Congress a virtual negative upon all police laws of the State, which in any way may touch or affect the persons or vessels engaged in commerce. Such a construction would disarm every State in the south of the power of self protection against every emissary, whose coasting license would be indeed a license to seize and harbor slave property from all possible reach of its owners. It is neither justified by the history of the constitution, by any sound rule of construction, or by any supposed necessity to preserve the real integrity of the commercial power of Congress.
Tazewell Taylor, for the appellant, in reply.
The peculiarity of the act of March 1856, will attract the attention of every reader. It is the first of the kind, except one passed in 1841; passed under excitement, and in four years stricken from the statute book on the application of the persons for whose benefit it was enacted; the offence which occasioned it unatoned for. This act is limited and partial in its provisions; and makes distinctions between vessels on the grounds of ownership and destination. Our law makes it a crime to carry slaves beyond the county with intent to defraud, whether in a Virginia or a Massachusetts vessel. This act only applies to Massachusetts vessels. A vessel against which there is no ground of suspicion, an unsworn officer may call for the power of the county to search it, if it is bound for the north, though owned by southerners. And she is to pay a tax for this search upon her. And again in this matter of discrimination between vessels, coal vessels are only charged two dollars for a search, whilst all others are required to pay five dollars for the same operation.
Is Virginia whilst she remains in the union, to protect herself by an act in violation of the constitution of the United States? Shall she not rather lose her property than violate her honor? What is the general assembly? Is it a parliament clothed with all power of legislation? It is limited by the constitution of the United States and the constitution of Virginia. If it passes an act in violation of these, it is no law; and this court will so declare it. The legislature is not sovereign— the people are the only sovereign, and an unconstitutional law is a violation of the sovereign will of the people. The constitution of the United States is our constitution, and its violation is as much a violation of the sovereign will of the people of Virginia as is a violation of the constitution of Virginia. In the name of the sovereign people of Virginia I ask that this unconstitutional act may be declared null and void. As early as 1793 the fathers of the constitution established the principle that the courts are to decide upon the constitutionality of a law. Kemper v. Hawkins, 1 Va. cas. 40. And they laid down the rule on the subject: That where the law is plainly against the constitution, or the fundamental principles of our institutions, it is to be declared void. And to the like purpose and effect is Landry v. Klopman, 13 Lous. Ann. R. 345; and Calder & wife v. Bull & wife, 3 Dall. R. 386.
1st. The law is void because contrary to article 10 of the Bill of Rights of Virginia. This bill was declared in the convention of 1829, to be the foundation and basis of our government; and after that declaration was ratified by the first article of the constitution; and again with the addition of a word was ratified and adopted in 1851, by the vote of the people. It was referred to and approved by the judges in the early days of the republic. Tucker in Kemper v. Hawkins. And it is strange that in this year 1860, eighty years after its adoption, we are aksed what it means. The article 10, declares that general warrants, which authorize a search of suspected places without evidence of a fact committed, are grievous and oppressive; and ought not to be tolerated. The attorney general says this article does not restrain the legislature; and that its only effect is, that a judicial officer cannot delegate his authority to an unsworn person to search suspected places. That no man can be disturbed by judicial authority without law. That this § 10 was merely intended to affirm what was decided in Money v. Leake. And thus we are referred to a decision of Lord Mansfield in 1766, to ascertain what are our priceless privileges under § 10 of the Bill of Rights; and to the power of a British Parliament to sustain the power of our legislature. And the Attorney General has referred to the patrol and night watch of the city of Richmond. I have never heard so inapt an illustration; and can imagine the spirit of George Mason returning to the earth to rebuke such an insult.
It is said that Mason was acquainted with Mansfield's decision. That is probable; but my inference is, that he intended to guard against the exercise of any such power. And if the instrument on its face left its meaning in doubt, have we no other lights to guide us? This was not the only time that Mason spoke on these subjects.— He was a member of the convention which ratified the constitution of the United States; and he opposed the constitution, and insisted on a bill of rights to be connected with it. A committee was appointed to prepare a form of ratification; and another committee was appointed to prepare amendments; of which Mason was a member; and the report of this committee is only our Bill of Rights— the 4th amendment being the § 10 of that instrument. These principles were there declared to be the essential and inalienable rights of the people; and if this is true, are they to be protected against the executive and judiciary, and not against the legislature. The amendments reported by this committee were submitted to the States, and produced the 4th article of the amendments to the constitution, adopted by the whole people of the United States.
If then § 10 of our Bill of Rights does not restrain the power of the State government, how can article 4 of the amendments to the constitution restrain Congress? Are they not in the same category? And yet in the Commonwealth v. Murray, 2 Va. cas. 504, Brockenbrough J. held that Congress was restrained by this 4th article. And in the same case he says— that article is not applicable to the States because they had provided for their own security; and he refers to § 10 of the Virginia Bill of Rights. Such has been the legislative construction of the Bill of Rights. In the index to the Code of 1849 under the head of " search warrants," the first item is— " What prohibited by the constitution; " and then there are references to the act, Code ch. 203, p. 759, which provides how these search warrants may be obtained; requiring them to be founded on the oath of a party, and in all their provisions evincing a sacred regard to the essential and inalienable rights of the people. Reference has been made to the power of the police to protect the health of the people. But the act ch. 86, § 7, p. 397, shows a police officer is not allowed to enter upon a lot or a vessel without an oath.
In Crenshaw v. The Slate River Co. 6 Rand. 245, 276, this court held that the Bill of Rights is a part of the constitution of Virginia, which bound the legislature; and that the 1st section precluded the general assembly from taking private property without compensation.
It is clear then that the proposition, that the § 10 of the Bill of Rights does not apply to the legislature, is not sustained. If upon the idea of a supposed necessity the legislature may override this § 10 when the safety of the people requires it, under the present excitement it may be that the general assembly may authorize any person to enter the house of any citizen or resident, and search for suspected persons or property, and send the owner to jail. If we once depart from the plain construction put upon this provision of the Bill of Rights we are adrift, and may be carried to any length under the tyrant's plea of necessity. If four hundred millions of slave property were dependent upon this law, as said by the Attorney General, I would prefer to lose them all, rather than to live where the legislature was authorised to resort to these hand to mouth expedients, resulting in a loss of all reverence for law and all respect for free institutions, and in utter anarchy and confusion.
The act in relation to arrests, Code ch. 204, p. 761, furnishes no countenance to this act. By that act the complaint must be to a justice of the peace, on oath, and this is the basis of the proceeding; and all the provisions of the act are strictly within the provision of the Bill of Rights. Nor does the common law give this act more support. That has regard to the rights of the subject. 2 Hawkins Pleas of Crown 130, 134; 4 Black. Com. 290. It is said a private person may arrest a felon and carry him before a justice; and therefore, it is argued, a pilot may arrest the master of a vessel having a fugitive slave on board. But the objection is, that the pilot had no right to go on board the vessel. Nor is the reference to the pilot laws more fortunate. The pilot is only to enquire if disease is on board the vessel; and if it is, then to pilot it to the proper quarantine ground. As to the act in relation to patrols, Code ch. 98, p. 445, it has especial reference to houses of slaves; it says " negro quarters and other suspected places." To take property or fire arms from the dwellings of slaves or free negroes, or to break open their door the patrol must have the warrant of a justice of the peace. The principal duty of the patrol is to visit negro quarters, and the other words are to be construed with reference to the principal words, and are not to be extended beyond them.— If they go further the law is obnoxious to the same objection as the law now in issue.
I shall now proceed to call the attention of the court to the extent of the authority to search under the act of March 1856. My colleague says it is founded on the imputation of a felony. There is great force in what he says; but it is not necessary to go so far. It is at least founded on a suspicion of felony. The law goes on the suspicion that a vessel owned by persons not Virginians, and bound north, has slaves on board. Does the Bill of Rights authorize a search on grounds of suspicion? I say no. To authorize a search an offence must have been committed, and there must be a suspicion that the guilty person is in the place which is to be searched. Under this act the search is to be only upon suspicion that the offence has been committed; not because the pilot knows an offence has been committed, and the offender is on board the vessel. He goes on board and finds no person charged with the commission of a crime, yet he may there seize any person on board, on his own responsibility. Is such a power to be authorized without any safeguards; without proof of crime committed; without suspicion of a criminal being on board the vessel; without an affidavit even, is he to enter into a man's castle, and there arrest and imprison according to his own judgment or pleasure? If § 10 of the Bill of Rights does not protect a man from such a search as this, then it is indeed a worse than idle provision.
I have been unable to perceive the bearing of the pilot and quarantine laws upon this question. These laws are the handmaids and assistants of commerce. They are necessary to commerce, and may therefore be given title to enforce compensation for their essential services.— And to make the inspection laws analagous to this act, there must be found in them the authority to search for and seize the articles condemned by them. And then it would be obnoxious to the same objection as this act.— The act in relation to incendiary publications, simply provides that if the postmaster knows of a book, & c., of the kind prohibited which comes to his office, it must be burned. The postmaster must know, and then he is to inform a justice of the peace, who is to proceed regularly for the arrest, & c., of the guilty parties. The only Federal law referred to by the Attorney General, is from Brightley's Digest. That act in three lines requires every licensed vessel, upon being called on by a revenue officer, to show his license; and if he does not he is subject to a penalty. The demand is made by an officer authorized by law to make it. But the case of Smith v. State of Maryland, 18 How. U.S.R. 71, is cited to show that though there is the same provision in the constitution of the United States and of the State of Maryland, yet it was there held that a master of a vessel might be searched and seized for dredging for oysters. In the Supreme court no question arising on the constitution and laws of the State could be considered. There too the vessel was seized in the act; and in such a case an affidavit was necessary as the foundation of the proceeding.
The act is moreover in conflict with the fundamental principles of our institutions. Of these principles, one is equality. The act does not operate equally on citizens of Virginia. One citizen on board of a vessel owned in New York is to be searched, another on board of a vessel owned in Virginia is not to be searched. A vessel going north is to be searched, another going south is not to be searched.
2. The next question is whether this law violates the 2d section of the 4th article of the constitution of the United States. " The citizens of each State shall be entitled to all the privileges and immunities of citizens in the several States." This is a grave question, and we are not much aided by the decisions. It came up last in Conner v. Elliott, 18 How. U.S.R. 591. Curtis J. who delivered the opinion of the court, declined to give a general interpretation of the provision. Another case was Corfield v. Coryell, 4 Wash. C.C.R. 371; and another is Chapman v. Miller, 2 Speers R. 769. And Story in his immense work on the constitution, 3 Story on const. § 1800, confines himself to the remark, that the provision was intended to confer general citizenship and all the privileges and immunities of citizens. If judges decline to attempt to interpret the terms of the provision generally, counsel may well do so, and confine themselves to the enquiry as to its true construction as applicable to this case. It is not necessary to insist that it refers to rights of property under State laws. I am to show that the law when applied to a citizen of Massachusetts deprives him of a privilege he is entitled to under this clause of the constitution. This right is not affected by State lines or boundaries; and any act of a State which disturbs or affects his privileges comes within this provision of the constitution. And any law of Congress— even a tax of one cent— which puts one citizen under a different state of things from another, is unconstitutional.
Then what is the privilege which the appellant insists has been affected by the act of 1856? He, a citizen of the United States, the owner of a vessel on a voyage from Virginia to New Bedford, entitled to the benefits of the navigation laws of the United States, on the great highway of nations, is sought to be arrested by this law, and to have imposed upon him a burthen which is not imposed upon a citizen of Virginia Now whilst it is conceded that the soil covered by the waters is within the State, the constitution intended to secure to citizens of the United States the right to navigate the waters of the States. This right was surrendered by the States to the United States; and the right to navigate these waters is derived from the United States, and not from the State; and every citizen of the United States is entitled to enjoy it free from all interruptions to which other citizens are not subject.
Then has not Congress exercised the power thus surrendered to it by the States? The power to regulate commerce includes navigation; and Congress having regulated the navigation of these waters, does it not follow, if the right is held under federal law, and that law directs how navigation may be carried on over these waters, that any law by a State which imposes a condition not prescribed by Congress, is in violation of the constitution of the United States? It is not important, therefore, to enquire whether, in the absence of Congressional action the State has the power to regulate navigation; because Congress has acted. No State has ever claimed the right to regulate navigation. The regulation must not only be exclusive, but it must be uniform; and any State law regulating navigation must, therefore, be void. The case of Livingston v. Van Ingen, 9 John. R. 507, gives the law as to the jus publicum.
Then the right of free navigation over these waters under an act of Congress is one of the immunities which which belongs to every citizen sailing under the flag of the United States. And the question is— does this act place a citizen of Massachusetts in any other condition than a citizen of Virginia or of any other State would occupy? There are two vessels in the waters of Virginia, under the flag of the United States, holding their title under the same sovereign authority, bound to the same place, owned by citizens of a common country— citizens of the United States— the owner of one a resident of Virginia and the other of North Carolina; they get their clearances and start with a fair wind on their voyage. The one is permitted to go without interruption; the other is not permitted to proceed until it seeks out a pilot, and is inspected, and pays five dollars.
This property in vessels is wholly regulated by United States law; and has never been the subject of State laws since the constitution was adopted. The recording acts of Virginia do not embrace it. If it is to be transferred or mortgaged, this must be done in the custom house.— The act of Congress regulates the ownership of this property; says who shall own it— a citizen of the United States, and not a foreigner— takes it from its keel, and makes minute regulations in relation to it. And this being the case, these two citizens holding these vessels under the same law, are they not to be placed in the same condition? Each citizen is entitled to every immunity belonging to any other citizen, and a law which interferes with it deprives him of his immunities.
This law seeks to make the vessel the violator of the law, and to subject it; and the Attorney General has endeavored to show that the two vessels were not in like circumstances. Whilst he presented several illustrations he never referred to the case before the court. I would have been pleased to hear him point out the circumstances, which this court can enquire into, in which they differ; keeping in mind the facts that they hold the property under the law of the United States, and as citizens of the United States; and that as such they are entitled to the immunities of the citizen of each State.
Take the police power of the State. A State has a right to punish any captain of a vessel committing a crime in her waters. But suppose a law is passed which provides that the captain of a vessel owned in Massachusetts shall be imprisoned for a specific offence, ten years in the penitentiary, and that for the same offence the captain of a Virginia vessel shall be imprisoned five years. Would that law be constitutional? The police power is admitted to extend to the case, and yet the law would be clearly null, as violating this clause of the constitution. And if this is so, how does it differ from the case before the court? We admit the police power to protect slave property; but the question is, whether the means used are constitutional. The tax of five dollars, if the principle involved in it is unconstitutional, cannot lose its character by the smallness of it. And how can the law make the same act a misdemeanor in one man and not in another, and yet not affect his immunities.
This inspection is not a privilege; but the requirement of it is a burthen; and an exemption from it is an immunity; and in that sense may be regarded as a privilege; and the citizen of North Carolina is deprived of a privilege which a citizen of Virginia enjoys. I refer to Chapman v. Miller, 2 Speer's R. 769. It is said that this case was decided on the ground that there was a conflict of legislation. This is an error. There was not then an act of Congress on the subject; but the act was held to be unconstitutional because it imposed a pilotage on a coaster from Massachusetts which it did not impose upon a like vessel from another State.
The Attorney General considers that the only effect of this clause of the constitution is to lift the incubus of alienage from the citizé ns of another State. This is true. But what is the effect of lifting this incubus, upon that species of property which is held under the laws of the United States, in the waters common to all the citizens? I need not deny that a non-resident citizen of another State does not enjoy all the privileges of a citizen in the State. That is equally true of a non-resident citizen of Virginia. If both come here they must remain the same length of time to be entitled to vote.
It is said that but for the distinction made in this act between citizens of the State and citizens of other States, there would in fact be a preference given to the latter. This goes upon the assumption— that if the non-resident takes a slave he is caught by the search, and the resident who takes a slave is to be punished when he returns to the State. But how is it where the non-resident has no slave on board his vessel; or neither has them? The non-resident must be subjected to the humiliation of a search, and pay the tax; the resident goes quit. But it is said if a non-resident steals a slave and gets away we cannot punish him. If that be so, does it help us to solve the question whether this law is according to the constitution? Upon the judicial view of the case he may be demanded, and will be surrendered; and however the fact may be this court can only look to the question as affected by the laws as they ought to be executed.
As to the oyster laws, that is legislation in respect to the property of the State; and may be such as the State may choose to make it.
This act imposes a tax on a vessel owned by a citizen of another State. It is said this is not involved in this case. The appeal brings up the law not in part but in the whole. The appellant says he did not submit to the inspection of his vessel, because if he had done so, he must pay five dollars, and have his vessel detained until it was paid. That he did not choose to pay this illegal tax, and therefore left without submitting to the inspection. This was the only mode of avoiding the tax. He could not have the inspection without paying the tax, and therefore he was not bound to submit to the inspection if he was not bound to pay the tax. And thus the constitutionality of this tax is brought up. This is a tax on property in a locality which the State laws do not cover, and on property owned out of the State. It is not pretended that the State can tax the property of other States not within her taxable limits. This too is a tax on navigation, and an unequal tax; and if the State may impose the tax of five dollars she may equally impose a tax of five hundred or five thousand dollars. I refer to judge Butler's opinion in 2 Speers' R. 769. It is said the act is merely for the protection of slave property. But shall we tax the people of other States to protect our property? There is no analogy between this tax and pilot and quarantine fees. In those cases a service is rendered to the person who is to pay, and no offence is charged or suspected. They are not taxes in any just sense, but payment of just dues.
I do not concur in Mr. Johnson's views of the constitution; but whether the commercial power is exclusive or concurrent, is not important in this case. The best view of the subject is by judge Curtis in Smith v. The State of Maryland, 18 How. U.S.R. 71; but the whole subject has been exhausted by the arguments of counsel and the opinions of the judges from Gibbons v. Ogden down to this case. Whether the power in Congress is exclusive or concurrent, it is admitted on all hands, that when Congress has acted, its action is exclusive; and Congress has acted by the navigation act which prescribes the terms on which vessels shall pass through our waters. The act of 1856 is in conflict with the navigation act, stopping vessels on their voyage, and imposing other and additional conditions on which they are to exercise the rights given to them by the act of Congress. The Passenger cases, 7 How. U.S.R. 414. Wayne J; Brown v. State of Maryland, 12 Wheat. R. 419.
I care not whether this act is called a police law or by any other name. Before it can be sustained it must be shown that it is conformable to the constitution, or it must be held that the State may enact police laws in violation of the constitution of Virginia and the United States. In City of New York v. Miln, 11 Peters' R. 102, it was held that this could not be done. And this law, I insist, is in violation of the constitution.
The pilot laws were authorized by act of Congress, and wisely, because the fees could not be uniform. the trouble, labor and expense at one port being much greater than at another. And so as to the quarantine laws, by the act of 1799, they were sanctioned and adopted. Brightley's Dig. 810.
DANIEL, J.
The action in this case was brought against the plaintiff in error to recover of him the sum of five hundred dollars, the penalty imposed by the first section of the act passed the 17th of March 1856, entitled " an act providing additional protection for the slave property of the citizens of this commonwealth." The judgment was rendered on a special verdict in which the jury find " that the defendant, (the plaintiff here), a citizen of Massachusetts, did on the 4th of August, 1856, then being the captain and owner of the schooner Nymphus C. Hall; owned in part by citizens of Massachusetts, leave the waters of Virginia with said schooner, for a port north of and beyond the capes of Virginia; without having first obtained a certificate of inspection as required by the provisions of the statute; " and if the court shall be of opinion that said statute is not in conflict with the constitution of the United States or the bill of rights and constitution of Virginia, and is a law governing in such cases, then the jury find for the plaintiff (in the action) the sum of five hundred dollars with interest from the 4th of August 1856, and costs, & c.; but if the court shall be of opinion, that said statute is in violation of the constitution of the United States, or the constitution and Bill of Rights of Virginia, then they find for the defendant.
In the petition for the supersedeas and in the argument here, it is urged that the statute in question is in conflict with several of the provisions of the constitution of the United States— and, first, with the third clause of the eighth section of the first article, declaring that Congress shall have power " to regulate commerce with foreign nations and among the several states and with the Indian tribes."
The provisions of the statute which, it is supposed, bear more immediately upon this question as well as the other questions raised in the case, are to be found in the first, second, fourth, fifth, sixth, eighth, eleventh, twelfth and sixteenth sections.
By the first section it is enacted that it shall not be lawful for any vessel, of any size or description whatever, owned, in whole or in part, by any citizen or resident of another state, and about to sail or steam from any port or place in this state, for any port or place north of and beyond the capes of Virginia, to depart from the waters of this commonwealth until said vessel has undergone the inspection provided for in the fourth section and received a certificate to that effect. If any such vessel shall depart from this state without such certificate of inspection the captain or owner shall forfeit and pay the sum of five hundred dollars; to be recovered by any person who will sue for the same in any court of record in this state, in the name of the governor of the commonwealth. Pending said suit the vessel of such captain or owner is not to leave the state until bond be given by the captain or owner, or other person for him, payable to the governer, with sureties, in the penalty of one thousand dollars, for the payment of the forfeit or fine and costs; and in default of such bond the vessel shall be held liable; and there is a proviso that the seetion is not to apply to vessels belonging to the United States government, or vessels American or foreign, bound direct for any foreign country, other than the British North American Colonies.
The second section constitutes the pilots licensed under the laws of Virginia, inspectors to execute the act. By the fourth section it is made the duty of such inspectors to examine and search the vessels mentioned in the first section, to see that no slave, or person held to service or labor in this state, or person charged with the commission of any crime within the state, shall be concealed on board said vessel. The inspection is to be made within twelve hours of the time of the departure of the vessel from the waters of Virginia, and may be made in any bay, river, creek or other water course of the state; provided, however, that steamers plying as regular packets between ports in Virginia and those north of and outside of the capes of Virginia, shall be inspected at the port of departure nearest to Old Point Comfort.
The fifth section directs that a vessel so inspected and getting under weigh with intent to leave the waters of the state, if she returns to an anchorage above Back river point or within Old Point Comfort shall be again inspected as if an original case; if however, such vesvel be driven back by stress of weather to seek a harbor she is to be exempt from payment of a second fee unless she holds intercourse with the shore.
By the sixth section the inspector is directed, after searching the vessel, if he sees no cause to detain her, to give to the captain a certificate to that effect: if, however, upon such inspection, or in any other manner, any slave or person held to service or any person charged with crime is found secreted on board of any vessel, or any vessel is detected in violating the provisions of this act, it is made the duty of the inspector to attach the vessel and arrest the person on board to be delivered up to the sheriff or sergeant of the nearest port in the commonwealth to be dealt with according to law.
The eighth section allows to the inspector a fee of five dollars for every inspection under the act, except inspections of vessels engaged in the coal trade, the fee for which is two dollars— and declares the vessel liable for its payment.
The eleventh section forbids any pilot, under a penalty of fifty dollars, from piloting, out of the jurisdiction of the state, any vessel which is required to be inspected and which has not obtained and exhibited to him the certificate of inspection.
The twelfth section authorizes the courts of the several counties and corporations situated on the Chesapeake bay or its tributaries, by an order entered of record to appoint as many inspectors at such places within their inspection districts as they may deem necessary, to prevent the escape, or for the recapture, of slaves attempting to escape beyond the limits of the state, and to search or otherwise examine all vessels trading to such counties and corporations; the expenses in such cases to be provided for by a levy on negroes now taxed by law; but no inspection by county or corporation officers thus appointed is to supersede the inspection, by pilots, provided for in the act.
The sixteenth section directs that the fines and forfeitures except such portions as are otherwise provided for in other sections of the act, shall be paid into the treasury of the state, to constitute a fund to be called " the fugitive slave fund" and to be used for the payment of rewards awarded by the governor for the apprehesion of runaway slaves, and to pay the expeuses incident to the execution of the statute, and for such other purposes as may be hereafter determined on by the general assembly.
It is proper to add that by the ninth and tenth sections, provisions are made for rewarding any inspector who shall apprehend a slave in the act of escaping on board a vessel trading to or belonging to a non-slaveholding state, and for punishing any inspector who, for the want of proper exertion or by neglect in the discharge of his duties, shall permit a slave to escape. It is proper too to observe further that during the same session of the legislature at which the act under consideration was passed (indeed on the same day of the session) two other acts were passed, the one an act to amend the Code so as more effectually to prevent the escape of slaves, and the other an act to increase the rewards for the arrest of runaway slaves. By the provisions of the former of these two acts, any free person who carries or causes to be carried out of any county or corporation any slave without the consent of his owner, or who shall attempt to carry off or aid or connive at or be in any way concerned in the escape of any slave, with intent to defraud or deprive the owner of such slave, is liable, on conviction to be confined in the penitentiary and to forfeit to the owner double the value of the slave; and if the person so offending is at the time in command of or attached to a vessel, the vessel is to be forfeited to the commonwealth: any master of a vessel trading to or bound beyond the limits of the state having a slave on board without the written consent of the owner and going with him beyond the limits of any county, and any free person traveling by land who shall aid any slave to escape out of any county are to be considered as carrying off such slave within the meaning of the foregoing provisions. The master or skipper of any vessel who knowingly receives on board, any runaway slave and permits him to remain on board without proper effort, is liable to penalties of a like character, and if such slave be on board such vessel after leaving port, the master or skipper shall be presumed to have knowingly received him. And if a free person advise any slave to abscond from his master or aid such slave to abscond by procuring for, or delivering to him, a pass, register or other writing or furnishing him money, cloths, provisions or other facility, or be in any manner accessory to the escape or attempt to escape of such slave he is also punishable therefor by confinement in the penitentiary.
No one can, I think, read the act in question in connexion with the provisions of the two other statutes just mentioned, and other acts of a like character to be found in our Code and Sessions Acts, without coming to the conclusion that the act was framed with no view to the regulation of commerce, and with no design to interfere with its regulation by Congress; but that its real object and design was as its title declares, to provide additional protection for the slave property of the citizens of the commonwealth; that it forms a part of a system of police measures adopted by the legislature in the honest effort to suppress and prevent the escape and abduction of our slaves.
Such being the avowed and manifest design of the act, it is difficult to understand the argument that would place it in conflict with the provisions of the constitution in question, even allowing, to the word commerce, the most comprehensive meaning that has been given to it, and, to the grant, of power over the subject, to Congress, the most liberal construction that has been adopted in any judicial decision brought to our notice. In no one of the numerous cases cited at the bar, in the course of the extended argument here, have I been able to find any ruling or dictum which would exempt private vessels, their masters or crews— the instruments and agents of commerce— whilst within the jurisdiction of a state, from the operation of its laws passed with a view to the restraint and punishment of offences against the persons or property of its citizens. On the contrary in nearly all of these cases, in which the validity of state laws have been disputed on the ground of their alleged conflict with the clause of the constitution in question, it has been assumed on the one hand and conceded on the other, that the laws of a state passed in the exercise of its reserved powers over its internal police, if not paramount to any mere regulation of commerce by Congress, are yet not to be denied their full force and efficacy in any cases other than those where the law of the state and the law of Congress are so directly and vitally opposed to each other that they can not be reconciled or consistently stand together. The law under consideration, as I understand it, stands opposed to no decision made or opinion pronounced in any one of the cases of Gibbons v. Ogden, 9 Wheat. R. 1; Brown v. State of Maryland, 12 Id. 419; or the cases of Smith v. Turner, and Norris v. The City of Boston, The Passenger Cases, 7 How. U.S.R. 283. So far from it, in the concessions made by the judges who concurred in these decisions, and more especially in the concessions made by the judges constituting the majority of the court, in the Passenger Cases, is to be found the admission of every principle necessary to the vindication of the law under consideration against the allegation of its being in conflict with the constitutional power of Congress over the subject of commerce. Thus in the case of Smith v. Turner, Mr. Justice McLean at p. 400, (7 How.) says, " in giving the commercial power to Congress the states did not part with that power of self preservation which must be inherent in every organized community. They may guard against the introduction of anything which may corrupt the morals or endanger the health or lives of their citizens ." Again at page 402, whilst denying that a state can regulate foreign commerce he says, " it may. yet do many things which more or less affect it. It may tax a ship or other vessel used in commerce the same as other property owned by its citizens. A state may tax the stages in which the mail is transported, but this does not regulate the conveyance of the mail any more than taxing the ship regulates commerce. And yet in both instances the tax on the property in some degree affects its use." In the conclusion of his opinion in Norris v. City of Boston, p. 410, he observes: " Under the first and second sections of the act the persons appointed may go on board of a ship from a foreign port which arrives at the port of Boston with alien passengers on board and examine whether any of them are lunatics, idiots, maimed, aged or infirm, incompetent to maintain themselves, or have been paupers in any other country, and not permit such persons to be put on shore unless security shall be given that they shall not become a city, town or state charge. This is the exercise of an unquestionable power in the state to protect itself from foreign paupers and other persons who would be a public charge." Mr. Justice Grier, in the course of his opinion in the last mentioned case, at p. 457, remarks: " It must be borne in mind that the controversy in this case is not with regard to the right claimed by the State of Massachussetts, in the second section of the act, to repel from her shores, lunatics, idiots, eriminals or paupers which any foreign country or even one of her sister states might endeavor to thrust upon her; nor the right of any state whose domestic security might be endangered by the admission of free negroes, to exclude them from her borders. This right of the states has its foundation in the sacred law of self-defence, which no power granted to Congress can restrain or annul. It is admitted by all that those powers which relate to merely municipal legislation, or what may be more properly called internal police, are not surrendered or restrained; and that it is as competent and necessary for a state to provide precautionary measures against the moral pestilence of paupers, vagabonds and convicts, as it is to guard against the physical pestilence which may arise from unsound and infectious articles imported." And Mr. Justice Wayne, at p. 426, says: " When Congress shall legislate— if it be not disrespectful for one who is a member of the judiciary to suppose so absurd a thing of another department of this government, to make paupers, vagabonds, suspected persons and fugitives from justice, subjects of admission into the United States, I do not doubt it will be found and declared, should it ever become a matter for judicial decision, that such persons are not within the regulating power which the United States have over commerce. Paupers, vagabonds and fugitives never have been subjects of rightful national intercourse, or of commercial regulations, except in the transportation of them to distant colonies to get rid of them, or for punishment as convicts. They have no rights of national intercourse; no one has a right to transport them without authority of law from where they are to any other place; and their only rights, where they may be, are such as the law gives to all men who have not altogether forfeited its protection." For a fuller statement of these principles, reference may be made to the opinion of Mr. Justice Barbour in the case of The City of New York v. Miln, 11 Peters R. 139-141, and to the opinions of Mr. Justice Woodbury and Mr. Justice Grier in The License Cases, 5 How. U.S. R., 628-632. In the last mentioned case Mr. Justice Grier concludes his opinion with the following observations: " It has been frequently decided by this court ‘ that the powers which relate to merely municipal regulations, or which may be more properly called internal police, are not surrendered by the states or restrained by the constitution of the United States; and that consequently in relation to these the authority of a state is complete, unqualified and conclusive.’ Without attempting to define what are the peculiar subjects or limits of this power, it may safely be affirmed that every law for the restraint and punishment of crime, for the preservation of the public peace, health and morals, must come within the category. As subjects of legislation they are, from their very nature, of primary importance; they lie at the foundation of social existence; they are for the protection of life and liberty, and necessarily compel all laws on subjects of secondary importance which relate only to property, convenience or luxury, to recede when they come in conflict or collision; salus populi suprema lex. If the right to control these subjects be ‘ complete, unqualified and exclusive’ in the state legislatures no regulations of secondary importance can supersede or restrain their operations on any ground of prerogative or supremacy. The exigences of the social compact require that such laws be executed above all others. It is for this reason that quarantine laws which protect the public health, compel mere commercial regulations to submit to their control. They restrain the liberty of the passengers, they operate on the ship which is the instrument of commerce and its officers and crew, the agents of navigation; they seize the infected cargo and cast it overboard. The soldier and the sailor, though in the service of the government, are arrested, imprisoned and punished for their offences against society. Paupers and convicts are refused admission into the country. All these things are done not from any power which the states assume to regulate commerce or to interfere with the regulations of commerce, but because police laws for the preservation of health, prevention of crime and protection of the public welfare, must of necessity have full and free operation according to the exigency which requires their interference."
It is true that there is a conflict between some of these views and portions of the opinion of Chief Justice Taney in the same case, which it would seem proper to notice. In commenting on the case of Gibbons v. Ogden at p. 582, he observes: " It is admitted by the court, in that case, that a state may, in the execution of its police and health laws, make regulations of commerce, but which Congress may control. It is very clear that so far as these regulations are merely internal and do not operate on foreign commerce, or commerce among the states, they are altogether independent of the power of the general government, and cannot be controlled by it. The power of control therefrom which the court speaks of, presupposes that they are regulations of foreign commerce, or commerce among the states. And if a state, with a view to its police or health may make valid regulations of commerce which yet fall within the controlling power of the general government, it follows that the state is not absolutely prohibited from making regulations of foreign commerce within its own territorial limits, provided they do not come in conflict with the laws of Congress. It has been said indeed, that quarantine and health laws are passed by the States, not by virtue of a power to regulate commerce, but by virtue of their police powers, and in order to guard the health and lives of their citizens. This, however, cannot be said of the pilot laws, which are yet admitted to be equally valid. But what are the police powers of a State? They are nothing more or less than the powers of government inherent in every sovereignty to the extent of its dominions. And whether a State passes a quarantine law or a law to punish offences, or to establish courts of justice, or requiring certain instruments to be recorded, or to regulate commerce within its own limits, in every case it exercises the same power; that is to say, the power of sovereignty, the power to govern men and things within the limits of its dominion. It is by virtue of this power that it legislates; and its authority to make regulations of commerce is as absolute as its power to pass health laws except in so far as it has been restricted by the constitution of the United States. And when the validity of a state law making regulations of commerce is drawn into question in a judicial tribunal, the authority to pass it cannot be made to depend upon the motives that may be supposed to have influenced the legislature, nor can the court enquire whether it was intended to guard the citizens of the State from pestilence and disease, or to make regulations of commerce for the interests and convenience of trade." He then proceeds however, more fully in support of the proposition, which he was seeking to establish, and in reference to which the foregoing remarks were made, to insist, that the grant of power to Congress to regulate foreign commerce is not of itself a prohibition to the States, but that the States have still the right to make and enforce regulations of the subject for their own territory subject only to the restriction that they do not conflict with some law of Congress.
It is proper also to observe that, in the recent case of Sinnot v. Davenport & al., 22 How. U.S.R. 243, (which will be again referred to,) Mr. Justice Nelson, in delivering the opinion of the Supreme court, in answer to an argument, that the act whose validity was in question, was but the exercise of a police power, and hence, if the act should be found in conflict with a law of Congress regulating commerce, it should still be regarded as a valid act and as excepted out of, and from, the commercial power, fully concurs in the views of Judge Taney on the subject. " The nullity of any act inconsistent with the constitution," (he observes) " is produced by the declaration that the constitution is the supreme law. The appropriate application of that part of the clause which confers the same supremacy on laws and treaties is to such acts of the State legislature as do not transcend their powers, but though enacted in the execution of acknowledged State powers, interfere with or are contrary to the laws of Congress, made in pursuance of the constitution, or some treaty made under the authority of the United States. In every such case the act of Congress or treaty is supreme; and the law of the State, though enacted in the exercise of powers not controverted must yield to it." He makes, however, this important addition: " We agree, that in the application of this principle of supremacy of an act of Congress in a case where the State law is but the exercise of a reserved power, the repugnance or conflict should be direct and positive, so that the two acts could not be reconciled or consistently stand together; and also that the act of Congress should have been passed in the exercise of a clear power under the constitution." In this connexion it is further to be considered, that the Supreme court in the case of Cooley v. Board of Wardens of Port of Philadelphia, 12 How. U.S.R. 299, have decided that though the pilot laws are regulations of navigation, and therefore of commerce, and by consequence within the grant to Congress of the commercial power, yet that this power in respect to such laws, is not exclusive; and that the laws of the States on the subject are constitutional and valid.
This being settled, in the view which I take of the law under consideration, it is not material to the settlement of this case, whether we adopt the views of those judges of the Supreme court who hold that health laws and other regulations of police passed by the State, must prevail in any conflict with regulations of commerce by Congress, or concur with judge Taney and the other members of the court entertaining the like sentiments, in holding that the police laws of the State are to have full sway and efficacy over all matters within the jurisdiction of the State until they be found in direct and fatal antagonism to some regulation of commerce, by Congress. For placing the act in question upon the footing on which the plaintiff in error would place it, to wit, of a commercial regulation, it would, for the most obvious reasons, be entitled to the entire benefit of the main reasoning upon which Mr. Justice Curtis, who delivered the decision in the case just cited, rested the validity of the pilot laws; which was, that, from their very nature it was not necessary that they should be uniform, but on the contrary, they demanded a diversity which could alone meet the varying local necessities of navigation; and consequently that the subject was one likely to be best provided for, not by one system or plan of regulations to be adopted by Congress, but by as many as the legislative discretion of the several States should deem applicable to the local peculiarities of the ports within their limits. If we could view this act then as a regulation of commerce or navigation passed to prevent vessels from becoming instrumental in the escape of slaves, the same plea of a local necessity for the passage of the law in question sustains it. The property which it seeks to protect is of a peculiar character confined to a minority of the States of the Union; the laws necessary for its protection in one State wonld be wholly inapplicable to another State.
And in this connexion it may be asked, with what regulation of commerce by Congress does the law in question conflict that the pilot laws in the case last cited did not conflict with? It was said in the course of the argument, that it conflicts with the laws of Congress regulating the enrolment and licensing of vessels for the coasting trade. In this case there is no proof that the vessel in question had a coasting license; the special verdict is silent on that subject. But waiving that defect in the case, there is a ready answer to the objection to be found in the case just cited. In that case it was admitted that the Consul, one of the vessels of which the pilotage was demanded, was engaged in the coasting trade, sailing under a coasting license of the United States, and was bound from the port of Philadelphia in the State of Pennsylvania to the port of New York in the State of New York. Yet those facts were decided to be of no force.
It is obvious that the decisions in none of the cases yet cited, bear immediately on the question before us, though they relate to subjects of a kindred character.— They were, however, made the subject of a very full examination at the bar, and I have felt it my duty to refer to them, and have, I think, shown that the opinion and reasonings, of the judges in those cases, so far as they bear on this case, instead of warranting any doubt as to the validity of the law in question, tend strongly to the establishment of its constitutionality. This law cannot be likened to the law of Alabama which was pronounced unconstitutional by the Supreme court in the case of Sinnot v. Davenport, 22 How. U.S.R. 227, already cited. The law there required the owners of steamboats navigating the waters of the State, before such boat should leave the waters of Mobile, to file a statement in writing in the office of the probate judge of Mobile county setting forth— first the name of the vessel; second the name of the owner or owners; third, his or their place or places of residence; fourth, the interest of each in the vessel. That law was held to be in conflict with the act of Congress passed 1793 (See Brightley's Digest, Coasting Trade 140, § 7,) so far as it bore upon a coasting vessel which had taken out a coasting license and was duly enrolled under the law of Congress for carrying on the coasting trade, and plied between New Orleans and the cities of Montgomery and Wetumpka in Alabama. The ground of the decision was that the enrolment prescribed by the act of Congress required the owner or owners to furnish, under oath, to the collectors all the information required by the State law, and which is incorporated in the body of the enrolment; that Congress therefore had legislated on the very subject which the State law undertook to regulate and had limited its regulation in the matter to a registry at the home ports.
I will now proceed to notice briefly the particulars in which, it is contended, the law conflicts with the clause of the constitution in question— or interferes in any manner with the operations of commerce, or subjects it to any improper burden. The objectionable features of the law in this aspect, as is said, are those which direct the search of the vessel, and exact a fee to the pilot or inspector for making the search; and those which forfeit the vessel and direct its seizure and the arrest of those on board, if found violating the laws of the State in any of the particulars mentioned in the act.
In respect to the last objection the case of Smith v. The State of Maryland, 18 How, U.S.R. 71, is, as I conceive, directly in point. In that case a vessel which was enrolled and licensed for the coasting trade was seized condemned and forfeited, by proceedings, in the State courts of Maryland, for a violation of an act of that State passed to prevent the destruction of oysters in the waters within the jurisdiction of that State. The Supreme court of the United States, without dissent, sustained the judgment. In delivering the opinion of the court, Mr. Justice Curtis held that the laws of Congress for the enrolment and licensing of vessels conferred no immunity, from the operation of the valid laws of a State; that where a vessel so licensed engaged in commerce between the States is interrupted therein by a law of a State, the question arises whether the State had power to pass the law by force of which the voyage was interrupted; that if it should be found as in Gibbons v. Ogden, that the State had not power to make the law under which a vessel of the United States was prevented from prosecuting its voyage, then the prevention would be unlawful, and the proceedings under the law invalid. But that a State might make valid laws for the seizure of vessels of the United States— such among others as quarantine and health laws; that the State of Maryland had a right to pass laws for the protection of oysters, and the punishment of those who should destroy them by the means interdicted in the act; that to inflict a forfeiture of a vessel on account of the misconduct of those on board, treating the vessel as liable to forfeiture because the instrument of the offence, is within established principles of legislation which have been applied by most civilized governments; and that it was within the legislative power of the State to interrupt the voyage and inflict the forfeiture of a vessel enrolled and licensed under the laws of the United States for a disobedience, by those on board, of the commands of such a law.
It can require no argument to show that this State has a right to pass laws to prevent the escape of its slaves, and to punish all who may aid them in the effort to escape. Indeed the right to pass such laws and to subject to forfeiture vessels which shall be made the instruments of their violation, is entirely free from seeming difficulties that were plausibly said to lie in the way of the Maryland law. So much of the law therefore as seeks to interrupt the voyage of a vessel and forfeit it when found in the actual violation of our laws, is free from the objection under consideration. Had the appellant or his vessel been detected in the actual violation of our laws there is no regulation of commerce which he could have relied on to exempt his person from arrest, or his vessel from seizure and forfeiture.
And I apprehend it is clear that the right of a State to pass laws for the prevention of crimes against the property of its citizens, is just as well recognized as its right to inflict punishment for such crimes when actually committed. And it would seem to follow as a necessary corollary, that if the penalties for actual violations of the laws may properly reach to, and interfere with the operations of commerce, all just precautionary measures adopted with a view to the prevention or detection of such violations, must have the like force and virtue.
In the case of The City of New York v. Miln, 11 Peters R. 102, already cited, this proposition was treated by Mr. Justice Barbour, in delivering his opinion, as one free from all dispute. " No one will deny (he says) that a State has a right to punish any individual found within its jurisdiction who shall have committed an offence against its criminal laws. We speak not here of foreign Ambassadors as to whom the doctrines of public law apply. We suppose it to be equally clear that a State has as much right to guard by anticipation against the commission of an offence against its laws, as to inflict punishment upon the offender after it shall have been committed." For a fuller statement of the law in this respect I refer to the opinion. The passage cited bears immediately on the question in hand. Unless then the preventive measures of this law, of which, the search is the one most seriously objected to, come in conflict with some other provision of the constitution of the United States or some provision of our own Bill of Rights and constitution, the mere fact that it causes the temporary detention of vessels employed as vehicles of commerce, on their voyage, is of no weight as an objection to the validity of the law.
The law, it is said by the counsel of the appellant, is in conflict with the spirit of the fourth article of the amendments of the constitution of the United States, which declares that the right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures shall not be violated, and no warrants shall issue but upon probable cause supported by oath or affirmation, and particularly describing the place to be searched and the person or things to be seized; and more especially in conflict with the Bill of Rights of Virginia, which declares that general warrants whereby an officer or messenger may be commanded to search suspected places without evidence of a fact committed, or to seize any person or persons not named, or whose offence is not particularly described, and supported by evidence, are grievous and oppressive and ought not to be granted. It is sufficient to say, in respect to the first branch of the objection, that the clause of the constitution of the United States in question is in restraint only of process issued under the laws of the United States, and has no application whatever to the laws of the States or proceedings under them. This has been repeatedly decided by the Supreme court. Smith v. State of Maryland, 18 How. U.S.R. 71, and cases there cited. In passing upon the question whether the law violates our Bill of Rights, I do not deem it necessary to consider a preliminary question much discussed at the bar, to wit, whether the restraints of the section in question were restraints only on the judiciary in the exercise of its powers, or also extended to the legislature. Conceding for argument's sake that its restraining influence was designed to extend over all the departments of the government, I have not been able to bring my mind to see that it can affect such a law as the one under consideration. The power of search which is given by this law is derived from that quasi maritime power or police over the waters of the State visited by vessels engaged in commerce which is inherent to the sovereignty of every State, and has never been surrendered by Virginia to Congress— certainly never given exclusively to Congress. The Bill of Rights is intended to protect the citizens in their persons and houses from unreasonable search; but surely it could never have been within the meaning of the founders of our government, by this clause, to strip the State of one of those powers essential to the protection of the State, and one which is claimed and exercised by all nations, viz: that of ascertaining the character, purposes and intentions of all vessels visiting its ports; of seeing that they are not made the vehicles of bringing disease or crime into the State, or in other respects made the instruments of violating its laws.
It is essential to the safety of every nation that it should have the power, not only to seize and forfeit if necessary, vessels visiting its waters, and to punish the persons controlling and navigating them, for breaches of its local regulations, but also to impose upon them such restraints as are necessary to prevent them from violating its laws. The fourth article of the amendments of the constitution of the United States has never been regarded by Congress, I believe, as denying to it the full exercise of this right. Such a power has been always deemed essential to the protection of the customs and the full execution of the revenue laws, as will be seen by a reference to the history of our federal legislation. Thus, in the laws on the coasting trade, Brightley's Digest 148, § 41, it is declared " to be lawful for any officer of the revenue to go on board of any ship or vessel whether the same shall be within or without his district, and the same to inspect, search and examine, and if it shall appear that any breach of the laws of the United States has been committed, whereby said ship or vessel, or the goods, wares and merchandise on board, or any part thereof is or are liable to forfeiture, to make seizure." — I am not aware that there has been any question as to the constitutionality of these provisions; and they have been in force from 1793. So again in the laws on imports and exports, Brightley p. 410, § 388, passed in 1799, it is enacted that " every naval officer, collector and surveyor, or other person specially appointed by them for the purpose, shall have full power and authority to enter any ship or vessel in which they shall have reason to suspect any goods, wares or merchandise subject to duty are concealed, and therein to search for, seize and secure any such goods, wares or merchandise; and if they shall have cause to suspect a concealment thereof in any particular dwelling-house, store, building or other place, they or either of them, shall upon proper application, on oath, to any justice of the peace be entitled to a warrant to enter such house, store or other place (in the day time only,) and there to search for such goods; and if any shall be found to seize and secure the same for trial; and all such goods, wares and merchandise on which the duties shall not have been paid or secured to be paid, shall be forfeited." Here we find the principle in question most distinctly and emphatically recognized and asserted; the right to search the vessels being placed in contrast with the right to search the houses, stores, & c.— No oath is made necessary as a pre-requisite to the search of the former, whilst it is to the search of the latter.
From the very nature of the mischief, of which the law under consideration was intended as a remedy, to wit, the concealment, carrying away and escape of persons on board of vessels in the very act of leaving the waters, and departing from the jurisdiction of the State, the law would be of little worth or efficacy if no search could be made except upon warrants founded upon oath of probable cause, & c. The fact of the flight, or effort to escape, or of the aid given, or facility afforded, by the vessel would, in all probability, be rarely known or suspected till the escape had been effected. In the absence of such precautionary measures the vessel would, in most instances, be beyond the jurisdiction of the State, and the property of the citizen lost, before the slow process of the law could reach the offending vessel or its master.
But it is said that the exaction of the fee for the search is unconstitutional— that it violates the second clause of the 10th section, article 1 of the constitution, which prohibits any State without the consent of Congress, from laying any imposts or duties on imports or exports, except what may be absolutely necessary for executing its inspection laws. A complete answer to this objection is to be found in the case of Cooley v. Board of Wardens of the Port of Philadelphia, and the Passenger cases. At p. 314, of the first mentioned case, Mr. Justice Curtis says: " This provision of the constitution was intended to operate upon subjects actually existing and well understood when the constitution was formed. Imposts and duties on imports and exports and tonnage were then known to the commerce of a civilized world to be as distinct from fees and charges for pilotage, and from the penalties by which commercial States enforced their pilot laws, as they were from the charges for wharfage or towage or other local port charges for services rendered to vessels or cargoes; and to declare that such pilot fees or penalties are embraced within the words imposts or duties on imports, exports or tonnage would be to confound things essentially different and which must have been known to be essentially different by those who used the language." And in the Passenger cases, Mr. Justice Wayne, in making a summary of what he understood to be the several propositions intended to be decided by the majority of the court in those cases, states at p. 415, (7 Howard,) as the 9th of those points or propositions, that the States may, in the exercise of their police powers, enact quarantine and health laws, and may exact from the owner or consignee of a quarantined vessel and from the passengers on board of her, such fees as will pay to the State the cost of their detention and of the purification of the vessel, cargo and apparel of the persons on board. The whole question, then, as to the fee, is, as I conceive, determined in settling the previous question. When the inspection of the vessel is once shown to fall within the legitimate functions of a police regulation the right to demand the fee for making the search, according to these authorities, follows as a necessary consequence.
Two other objections to the law remain to be considered: First— that it is in opposition to the second section of the fourth article of the constitution, which declares that the citizens of each State shall be entitled to all privileges and immunities of citizens in the several States; and secondly— that it conflicts with the sixth clause of the 7th section of the 1st article of the constitution declaring that, no preference shall be given by any regulation of commerce or revenue to the ports of one State over those of another— nor shall vessels bound to or from one State be obliged to enter, clear, or pay duties to another.
Is the law open to the first of these objections? It is contended that it is in this, that it subjects the vessels of citizens of other States, to charges and burthens from which the vessels of the citizens of our own State are exempted. The language of the law out of which the question arises, is, " it shall not be lawful for any vessel of any size or description whatever, owned in whole or in part by any citizen or resident of another State, and about to sail or steam from any port" , & c.
In proceeding to enquire into the force of the objection the first step is the ascertainment of the sense in which the words citizen and resident were used by the legislature.
In the case of Gassiss v. Ballow, 6 Peters R. 761, it was held by Chief J. Marshall, that a citizen of the United States residing in any State of the Union is a citizen of that State. There are other cases of the Supreme court to the same effect. And in Towle's case, 5 Leigh 743, the General court of this State decided that a naturalized citizen of the United States or a native citizen of any other State of the union domiciled in Virginia, being entitled to all the privileges of a citizen of this State, is a citizen of Virginia; and by the Code of 1849, p. 61, it is declared, that all free white persons born in the State, all free white persons born in any other State of this union, who may be or become residents of this State, all aliens being free white persons naturalized under the laws of the United States, who may be or become residents of this State, & c., shall be deemed citizens of this State. And by the 3rd section of the same chapter, p. 63, it is declared that any citizen of the State being twenty-one years of age, who shall reside elsewhere and in good faith become the citizen of some other State of this union or the citizen or subject of a foreign State, shall not, while the citizen or subject of another State or sovereign, be deemed a citizen of this State. The second section of the chapter provides a mode (to wit by deed in writing, & c.) by which a citizen of the State may declare his purpose to relinquish his character of a citizen, and on his adopting that mode and departing from the State, the section declares that he shall be considered as having exercised his right of expatriation so far as regards this State and shall thenceforth be deemed no citizen thereof. A citizen of another State of the Union thus becomes a citizen of this State by residing in the State, and a citizen of Virginia may cease to be such by becoming the citizen of another State or country, or by expatriation. Construing the law in question in reference to the foregoing decisions and legislative provisions, it is obvious that the words " citizen or resident" in their present collocation cannot, without interpolating into the statute other words, give expression to the true meaning and purpose of the legislature, if we give to the word resident any one of the senses in which it is ordinarily understood. For if we suppose that by the use of the word is meant one temporarily sojourning in another State of the Union with no purpose of making it his permanent domicil, then the vessel of a citizen of Virginia, domiciliated in Virginia but sojourning in another State, might be subject to the burthen; whilst a ship owned by a former citizen of the State who had expatriated himself, or indeed by a foreigner neither a citizen nor a resident of any State of the Union, would be exempted from the burthen; and if we understand the word as meaning one permanently residing in and domiciliated in another State though not a citizen thereof, then a foreigner, not a resident, of any one of the United States, or if so, having but a temporary residence, might be exempted; whilst a native Virginian who by domiciliation had become a citizen of another State of the Union would be liable to have his vessel subjected to the search on the score of his being a citizen of such last mentioned State. And if this word resident is treated as a mere synonym of " citizen" then there would be a discrimination in favor of foreigners against native Virginians, who had expatriated themselves from the State, or who were merely sojourning in any other of the United States, without having abandoned their domicil in Virginia, or who were domiciliated in any foreign country, without having yet become citizens thereof. The purpose of the legislature manifestly was to provide that vessels owned by persons wanting in a certain relation to the State of Virginia should be liable to the examination provided for in the statute, and in the effort to designate and describe them they have adopted the indirect and awkward method of indicating such persons by the relation they have to other States. The words employed for the purpose, as they are now connected, (it has been seen) without some additions and explanations, so far from conveying the sense intended, lead to manifest absurdities; but by transposing the words and giving them an immediate connection with and reference to this State, they, admit, without any additional words, and without any other change of phraseology than the simple conversion of or into and, of a reasonable interpretation, and declare, as I conceive, the true meaning of the legislature, to wit, that vessels owned by any other persons than the citizens and residents of this State— citizens of Virginia— permanently residing— domiciliated in the State, shall be liable to the search. Under this interpretation of the law a citizen of Virginia who has abandoned his domicil, but who has not become a citizen of any other of the United States, nor formally expatriated himself— as also a citizen of Virginia domiciliated in a foreign State but not yet become a citizen of that State, and so still a citizen of Virginia, would be subject to the regulation alike with all other persons not domiciled in Virginia whether citizens of this State or other States of the Union.
Let us now proceed to consider briefly what is the nature of the privileges and immunities of citizenship to which the constitution entitles the citizens of each State in every other State. The language is broad— universal— " all the privileges and immunities" ; yet it is clear that such is not the true meaning of the constitution.— It could not have been the design of the framers of the constitution to declare that a State may not allow to its residents— its inhabitants— some privileges which it may deny to the residents and inhabitants of other States. We have no authoritative expositions of this clause of the constitution giving us a full and complete definition of its terms; though, it has been, I think, clearly shown that they must be received in a qualified and restricted sense. Thus in the case of Campbell v. Morris, 3 Har. & McH. 535, 554, judge Chase says— " By taking a retrospective view of our situation antecedent to the formation of the first general government or the confederation in which the same clause is inserted, verbatim, one of the great objects must occur to every person; which was the enabling the citizens of the several States to acquire and hold real property in any of the States— and deemed necessary as each State was a sovereign and independent State, and the States had confederated only for the purposes of general defence and security, and to promote the general welfare. It seems agreed from the manner of expounding or defining the words immunities and privileges by the counsel on both sides, that a particular and limited operation is to be given to these words, and not a full and comprehensive one. It is agreed it does not mean, the right of election, the right of holding office, the right of being elected. The court are of opinion it means that the citizens of all the States shall have the peculiar advantage of acquiring and holding real as well as personal property, and that such property shall be protected and secured by the laws of the State in the same manner as the property of the citizen of the State is protected. It means such property shall not be liable to any taxes or burdens which the property of the citizen is not subject to. It secures and protects personal rights." He added that " a restriction of the power of the State legislatures to establish modes of proceeding for the recovery of debts is not to be inferred from the clause under consideration." In that case the words of the law whose constitutionality was questioned are— " If any person whatsoever not being a citizen of this State and not residing therein, shall or may be indebted unto a citizen of this State, or of any other of the United States, or if any citizen of this State being indebted to another citizen thereof shall actually run away, abscond or fly from justice, or secretly remove from his place of abode with the intent to evade the payment of his or her just debts, such creditor may in either case make application, & c., for an attachment," & c.,
It was argued that the statute put the citizen of another State on a worse footing than the citizens of the State of Maryland; as by its provisions an attachment could not issue against a citizen of that State unless he was absconding or departing with a design to defraud his creditors, whereas in the case of a citizen of another State it was only necessary to show that he lived out of the State, and without any default or fraud on his part he was liable to be proceeded against. But the objection was without avail, and the validity of the law was sustained by the court. See also Ward v. Morris, 4 Harris & McH. 330, in which a decision was made to the like effect. See also Corfield v. Coryell, 4 Wash. C.R. 370.
Like differences between the modes of proceeding against the citizens or residents of other States and the modes of proceeding against their own citizens or inhabitants will be found in the laws of most of the States; and I know of no decision in which it has been held that, by such discriminations, the citizens of such other States are deprived of any of their rightful privileges and immunities. A like discrimination is made in our own laws and, I presume, in the laws of other States in demanding of the resident of another State seeking to enforce by suit a demand against a resident of this State, that he give security for the payment to his adversary of the costs of the suit in case he is cast in his suit; not only so, but that he also secure to the officers of the law the fees for the services they may be required to render him in the discharge of their respective duties— whilst a resident of the State is free to prosecute his suit without giving such security.
In neither of these instances can it be said that the non-resident is deprived of any of the immunities of citizenship, in the sense contemplated in the constitution; he is held ultimately responsible for nothing that he would not have to meet were he a resident citizen of the State; though his responsibilities are enforced in a mode differing from that adopted in the case of the citizen of the State; a difference justified by the difference in the relative situations of the two parties. The presence of the person of the citizen and his consequent immediate amenability to the process of the court justly exempts him from a proceeding in the one instance and a demand for security in the other, that are deemed just and necessary in the case of the non-resident who is beyond the reach of the ordinary process of the law.
The principle exhibited in the foregoing illustrations admits, obviously, of a further extension. Whilst all the property in the State, whether owned by its own citizens or the citizens of other States, is entitled to its protection, the State has an undoubted right to see that no property within its limits and jurisdiction by whomsoever owned becomes the source of annoyance to the community or of danger to the lives or peace or property of its citizens. It would seem equally just that, when any species of property whether from its peculiar situation or other cause, though that cause be the absence or non-residence of the owner, becomes the source of peculiar or extraordinary danger to the community, the State should have the right to adopt such regulations of police and set on foot such measures of vigilance as it may in its wisdom deem best calculated to guard against the threatened mischief. There is no injustice in subjecting the property of one class of citizens of the State to stricter regulations than those applied to the like property of another class of citizens of the State, if the discrimination is founded in a stronger necessity for rigor in the one case than in the other; nor is there any injustice in adopting a greater degree of vigilance in respect to the property of citizens of other States than is observed in respect to the like property owned by citizens of this State if there is greater danger, or reasonable grounds for the apprehension of greater danger to the safety of the public from the presence of such property in the one case than in the other.
It will be agreed too, I conceive, that in passing upon the law under consideration, respect for the legislature, nay sheer justice to that body, requires of us, that we give it credit for fair and reasonable dealing; that we are to take it for granted that the legislature has fairly endeavored to adapt the provisions of the law to the end avowedly sought to be accomplished; that under the pretext of providing a better protection to the slave property of the State, the legislature has not contemplated the sinister purpose of conferring upon the resident citizens of this State undue advantages over the citizens of the other States.
Is there, then, no good reason for the discrimination objected to?— no just ground for the search of vessels owned by the citizens of other States, or by our own citizens who have abandoned their residence in Virginia, which does not apply with equal force to vessels owned by the resident citizens of the State?
We have seen by a reference to the laws on the subject, that they not only subject to seizure and forfeiture any vessels which may be used as instruments for aiding in the escape of slaves, and visit with severe penalties all masters of vessels who may aid any slave to escape, but also extend to all persons who by affording any facility or otherwise " shall be in any manner accessory to the escape or attempt to escape of such slaves."
In the absence of a right to search the departing vessels of non-resident owners have we under these laws as complete a protection against them as is afforded in the case of resident owners? To my mind it is obvious that we have not. In the case of vessels owned by resident citizens, we have in their residence and amenability to the process of our courts, a safeguard against their knowingly allowing their vessels to be used as instruments or facilities to aid in the escape of slaves which we cannot have against the owners of vessels residing beyond our jurisdiction; as to the latter the provisions of the statute in respect to the accessory to the offence are without sanction or force; beyond the reach of the law its denunciations, as to them, are comparatively, without its terrors. It is true that in respect to the forfeiture and loss of the vessels, in case of detection, the resident and non-resident owners are under the influence of the like motives to dissuade and deter them from embarking in any criminal enterprise of the kind. But in respect of personal responsibility the two classes of owners stand on wholly different and unequal footings: A difference arising out of the very circumstance of residence in the one case and non-residence in the other. The resident uses his property— his vessel— under a sense of personal accountability for a violation of the law— the fear of an infamous punishment; a powerful restraining influence which, if not wholly inoperative in the case of the non resident must, from the very nature of things, act upon him with a far slighter degree of force. The law therefore, as it seems to me, is not necessarily obnoxious to the charge of injustice or partiality because of its requiring a measure of vigilance to be observed in respect to the vessels of non-residents, in the act of leaving the State, from which the vessels of resident citizens are exempted. The law makes no distinction between the resident and non-resident in respect to the penalties attached to its violation. In each case the vessel is liable to seizure and forfeiture; and this, without regard to the innocence or complicity of the owner wherever he may reside. The measure of corporal punishment with which it seeks to visit the owner who is in any manner accessory to the commission of an offence, is in both cases the same. The difference in its treatment of the two classes of owners of vessels consists in its adopting a measure of preventive justice in respect to the vessel of the non-resident, which it dispenses with in the case of the vessel of the resident owner. This difference is perfectly consistent with the promptings and movements of au even handed justice. It does not necessarily imply the indulgence by the legislature of feelings of special jealousy or suspicion towards the citizens of other States.— The law does not impute, necessarily, to the citizens of other States a depravity or proneness to the commission of crime of which it acquits the citizens of this State; but proceeding upon well known motives of human conduct, it does suppose that in the residence of the latter, within the reach of our laws, and in their sense of personal accountability for a breach of the law, which consequently arises out of their situation, there is a check and restraint upon their conduct which is wholly wanting, at least does not operate in a like degree, in the case of the non-resident. The law seeks to compensate for this difference; and in the effort avails itself of the only means within its reach. By the employment of an increased vigilance in respect to the movements of his vessel, the non-resident owner is brought under an influence which the denunciations of corporal chastisement would, for the reasons already stated in his case, be powerless to establish. By the exposure of his vessel to the greater hazard of forfeiture and loss, by means of the search, his sense of fear is quickened, and he is thus restrained from becoming an accessory to any scheme by which his vessel would be made an instrument of offence against the law. Such is, I conceive, the theory upon which the discrimination in question is founded; and the law is thus in my judgment acquitted of any injustice to the citizens of other States.
The force of this view is not impaired by the consideration that the law institutes the search as well in respect to vessels owned in part, as to those owned in whole, by persons other than resident citizens. If the search was required only in the case where the vessel was wholly owned by non-residents, the legislature might well apprehend that persons residing out of the State and disposed to aid in the escape of slaves through the instrumentality of their vessels, would seek to associate with themselves in the ownership of the vessels, persons residing in the State, and thus elude the provisions of the law. By subjecting to the search vessels owned by non-residents either in whole or in part, the legislature has sought to extend an additional restraining influence over all, interested to any extent in the ownership of the vessel, who by reason of their non-residence do not stand on the same footing of personal accountability with the resident owners of vessels.
I find nothing in the case of Chapman v. Miller, 2 Spears R. 769, decided by the Supreme court of South Carolina, in conflict with these views. In that case in which the validity of an ordinance to regulate the pilotage of Charleston was brought in question, vessels " wholly owned in that State" were exempted from fees of pilotage to the payment of which all other vessels were subjected. There was nothing, in the nature of the subject nor in the provisions of the law, to show any call for such a discrimination. As was said by the Judge— Butler— who delivered the opinion of the court, " the fact that coasting vessels are entirely owned in South Carolina can give their masters no better knowledge of the harbor of Charleston than masters of other coasters who have been engaged in the same trade, and who are therefore equally acquainted with the navigation. For it might be that a vessel owned in Massachusetts might be navigated by a master born in Charleston; and, vice versa, that a vessel owned in Charleston might be navigated by a Boston master; the circumstance of ownership can make no difference." And hence he argued that the discrimination was not founded in any real difference in the situation of the owners, and was unjust and in violation of the true meaning and spirit of the constitution; and the law was declared invalid.
Nor do I regard the case of Wiley v. Parmer, 14 Alab. R. 627, as furnishing any authority or argument against the constitutionality of the law. On the contrary the concessions made by the judges in delivering their opinions, go to sustain the right of the State to make the discrimination in question. The question there was as to the constitutionality of a statute which enacted that there should be assessed and collected on all slaves in the State, the property of non-residents, a tax of two dollars; whilst, at the time, the tax upon the slaves of citizens resident in the State was only one-half of that sum. The court held that the law was in conflict with the clause of the constitution under consideration. Chilton J. after citing the clause and adverting to the supposed objects of the framers of the constitution in making it, observed: " This section of the law impose a tax — a tax upon the slaves of non-residents, double that imposed by the then existing law upon the slaves of resident citizens, not for the purpose of enforcing any duty or obligation on the part of the owner or master with respect to the slaves; not with a view of protection to the State against any evil resulting from the situation of the property, but as was shown by the title of the act, simply for " the purpose of raising an additional amount of revenue to support the State government and to maintain the faith and credit of the State of Alabama," he said, however, further, that he wished it distinctly understood, that he did not deny the power of the State to enact whatever laws might be necessary to promote the peace and domestic interests of its citizens, and such police regulations as might be deemed necessary to protect or control this peculiar species of property. This power was reserved by the States as essential to their existence and well being as separate communities, while such powers only were conferred upon the general government as affect those interests common to all the States considered as a confederate nation. If the slaves of a non-resident should be turned loose upon the community without the control or guidance of their owner, he did not doubt that the State possessed the most ample power to adopt such police regulations as would effectually remedy the evil. But the law, he said, did not proceed on any such views. It did not demand the tax for any extra diligence or new measure of police arising out of the owner living apart from his slaves, or from his withholding his personal control and superintendence. Collier, Chief J. concurred fully, and in concluding his opinion said, " Slaves, it must be conceded, are a unique and peculiar description of property; and that it is competent for the legislature to enact regulations of police in respect to them which may discriminate between the resident and non-resident master. These measures of police may be so framed as to subject the non-resident to heavier pecuniary burdens." But it was not necessary, he added, to say more on that head, as the statute was plainly intended to raise a revenue, and not to regulate to any extent the police of the State.
The case of Redd v. St. Francis county, 17 Ark. 416, affords, as I conceive, strong persuasive authority against the objection to the law under consideration. In that case the law of which the constitutionality was assailed, required that all lands belonging to non-residents should be valued by three householders of the election township within which the lands are situate, to be appointed by the sheriff; and such valuation, provided it were not less than three dollars per acre, should govern the sheriff in assessing the same. It was urged against the law that it placed the non-resident on a different footing from that on which the resident citizens were placed in respect to the assessment of their taxable property; the general law upon the subject requiring that the assessor should require each person to give in a list of his taxable property, and that the assessor or sheriff should make out a schedule of the property so given in by each person and its value; and when thus made out it should be sworn to by the person or his agent, as being the full amount of property owned by him subject to taxation, together with the true value thereof; provided that no land shall be valued at less than three dollars. The court held that the provision objected to did not violate the second section of the fourth article of the constitution. They said that it did not follow that, because the legislature had directed one mode to be pursued for the ascertainment of the value of taxable property owned by residents, and another mode for the ascertainment of the value of such property when owned by non-residents, (though such difference might in some extreme cases work a prejudice to the non-resident,) the latter were deprived of any immunity or privilege guaranteed by the constitution; that the requirement of the general law was inconvenient and burdensome to the non-resident, because its observance would require him to have an agent in each county of the State in which he might own taxable property, who should have a personal knowledge not only of the kind of property owned by his principal, but from personal knowledge should be able to swear to its actual and intrinsic value; and was insecure and unsatisfactory to the State for the reason that it was confiding to an individual who might not be supposed to be informed fully on the subject, the assessment of the value of the property of others, and who from corruption or ignorance might place too high an estimate on such property, or else value it so low as to defraud the State out of its legitimate revenue; and that the law did not make any unjust discrimination in favor of citizens or impose burdens on the citizens of other States from which it exempted-the citizens of that State.
I regard the case as fully sustaining the general proposition, that when in the regulation of any subject of internal police, a regard to justice and the due and convenient enforcement of its laws requires a State to adopt a different mode of proceeding, or a modification of the regulation, in respect to persons residing out of the State, in order fairly to meet and provide for the circumstance of their non-residence, the competency of the State so to act is not taken away by the clause of the constitution in question.
Does the act in any manner conflict with the sixth clause of the ninth section of the first article of the constitution?
For a history of this clause of the constitution and a statement of the objects contemplated by it I refer to the opinion of Mr. Justice Nelson in the case of the Wheeling Bridge, 18 How. U.S.R. 432-3-4-5. " Apprehensions (he says) were entertained by some that under the power to regulate commerce Congress might favor ports of particular States by requiring vessels destined to other States to enter and clear at the ports of the favored ones, as a vessel bound for Baltimore to enter and clear at Norfolk." " The rights of the States were secured by the exemption of vessels from the necessity of entering or paying duties in the ports of any State other than that to which they were bound, or to obtain a clearance from any port other than at the home port or that from which they sailed; and also by the provision that no preference should be given by any regulation of commerce or revenue to the ports of one State over those of another." — " The history of the provision as well as its language looks to a prohibition against granting privileges or immunities to vessels entering or clearing from the ports of one State over those of another; that these privileges and immunities, whatever they may be in the judgment of Congress, shall be common and equal in all the States. Thus much is undoubtedly embraced in the prohibition; and it may also certainly embrace any other description of legislation looking to a direct privilege or preference of the ports of any particular State over those of another. Indeed the clause seems to import a prohibition against some positive legislation by Congress to this effect, and not against any incidental advantages that might possibly result from the legislation of Congress upon other subjects connected with commerce and expressly within its power."
It is obvious that the clause in question contemplates a restriction upon the powers of Congress, and not a re striction upon the legislation of the States in the regulation of their internal police. It is true that if a State under the pretext of a police regulation, should seek to make a discrimination without cause in favor of the ports of one State over those of another, there might be room for the argument that it was in fact regulating commerce, and regulating it in a manner forbidden to Congress. But does a mere fact that in a law relating clearly to a matter within the competency of the police power of the State, a regulation is found in respect to vessels bound to or from the ports of one or more States, from which, vessels bound to or from the ports of other States, are exempted, furnish necessarily, any ground for such an objection? The well established validity of quarantine laws, in which such discriminations are made, presents a ready and decisive answer to the question.— The power to adapt such laws to the necessities which call them into existence is not in any manner restrained by the clause of the constitution under consideration.— It would, I apprehend, be no cause of objection to a regulation of the kind that it applied only to vessels coming from certain ports, or was unlimited as to the period of its operation, if considerations of public safety rendered it proper that it should be so. If danger to the public health should always or generally attend, or be apprehended, from the arrival of vessels coming from certain ports, regulations fairly made to meet the case and guard against the danger could not be set aside and annulled upon the ground that they did not embrace vessels coming from the ports of other States. No preference, in any proper sense of the word, could be said to be given to the last mentioned ports.
The same principle is, it seems to me, applicable to the law we are now examining. If the legislature had just ground for apprehending a greater danger of the escape of slaves by means of vessels about to depart for ports or places north of the capes of Virginia than by means of vessels bound in other directions there was no necessary partiality or injustice in requiring a search of the vessels in the former case and dispensing with it in the latter. There is no provision of the constitution, fairly construed, which would require the legislature, for the mere sake of a seeming uniformity, but at the sacrifice of substantial justice, either to forego a necessary measure of protection or else to subject to the search vessels from which it apprehended no danger, or none in its judgment rendering a search necessary. As to the existence of the state of facts supposed there can, I apprehend, be no question. That there is a greater difficulty in recapturing and reclaiming slaves escaping to the non-slaveholding States of the North than attends the recovery of such as escape to the slaveholding States of the South, is a fact generally known— a matter of undisputed, well authenticated public knowledge. That fugitive slaves and persons aiding them in attempts to escape would therefore seek to avail themselves of vessels bound in the former direction rather than those bound in the latter, as affording facilities for making good such attempts, and that, hence, there would probably be a greater danger that vessels destined to northern ports would become the instruments of escape, might well be regarded by the legislature as matters of fair and proper inference; and that the legislature has framed the law in reference to the foregoing state of facts and the supposed requirements of public safety arising out of it, is I think, apparent as well from the provisions of the particular act in question as from those of the other laws passed at the same time, and especially from the provision offering special rewards for the arrest and restoration to their owners of slaves escaping to non-slaveholding States. The search is required in the case of a vessel bound north not merely because of its being so bound, but because by reason of such destination the danger of attempted escapes through the instrumentality of the vessel is enhanced. The discrimination proceeds upon no preference of the ships or ports of one State over those of another, but upon motives of State necessity, actually existing or fairly supposed to exist, in the judgment of the legislature. Entertaining such views of the objects contemplated by the law, and of the reasons on which it is founded, I have been unable to discover that any of its provisions conflict with the prohibitions or restrictions of either our State or federal constitution. And I am for affirming the judgment.
The other judges concurred in the opinion of DANIEL J.
JUDGMENT AFFIRMED.