which regulate commerce; while two of the justices, McLean and Grier, did not adopt this view. Two, Daniel and Woodbury, pushed their conclusions much further; and two, Wayne and McKinley, were absent, or took no part in the decision. Whatever rule, however, was established by this judgment, was entirely unsettled by the next cases which came before the same high tribunal for adjudication.

§ 358. The Passenger Cases: Facts and Questions at issue. -These are known as the Passenger Cases1 (1849). There were two cases, Smith v. Turner, on error from New York, and Norris v. The City of Boston, on error from Massachusetts. Smith and Norris were respectively sued in the courts below; judgments were recovered against them, which each sought to review. The same legal questions were involved in each case. A statute of New York provided that the health officer of the port of New York should be entitled to demand, sue for, and recover from the master of every vessel that should arrive at that port, certain sums for each steerage passenger brought to that port from a foreign country, or from another state. The moneys thus received were to be applied towards the support of a marine hospital. Masters were subjected to certain penalties if they neglected to make the prescribed payment. A statute was passed in Massachusetts similar in its general scope and important features, but differing somewhat in detail. Smith was sued in New York, and Norris in Massachusetts, for violating these laws. The only defence set up in each case was the unconstitutionality of the state statute. On the other hand, the contention was that the provisions of these legislative acts were merely rules of internal police, and that the cases were identical in principle with that of Miln v. The City of New York; also, that states have authority to pass such laws, even assuming them to be regulations of commerce.

The whole doctrine of constitutional construction was examined at great length by the counsel, and a violent effort was again made, both at the bar and on the bench, to recede from the earlier decisions, and to pronounce the jurisdiction

17 How. 283.

of the states over commerce virtually concurrent with that of the general government. The attempt was signally and finally defeated. Five members of the court, McLean, Wayne, Catron, McKinley, and Grier, agreed in pronouncing the state laws void, and they also agreed in the reasons for that conclusion. Four members, Taney, Daniel, Nelson, and Woodbury dissented, holding the laws valid.

§ 359. Opinions of the Judges. Mr. Justice McLean reached two conclusions, namely, that the power of Congress to regulate commerce is exclusive; and that the state statutes under review are regulations of commerce. In discussing the second of these propositions, he is obliged to consider the extent of the police powers which a state may lawfully hold and wield; and the question whether persons are the objects of commerce. He holds that they are, and rejects the contrary dictum of Barbour, J., in Miln v. New York.

Mr. Justice Wayne delivered an opinion, in which, after remarking that he does "not think it necessary to reaffirm, with our brother McLean, what this court has long since decided, that the constitutional power to regulate commerce is exclusively vested in Congress, and that no part of it can be exercised by a state," added that he fully believed such to be a correct interpretation of the Constitution. But he thought it sufficient then to say that Congress had legislated on the subject, so that the state laws in question were repugnant to the acts of Congress. He formally expressed his agreement with the judgment of McLean, J.

Mr. Justice Catron gave an elaborate opinion in which he held these state laws to be in direct conflict with statutes of Congress passed under their power to regulate commerce. Mr. Justice McKinley concurred with McLean and Catron, JJ., in their whole reasoning, and then proceeded to express these views in his own language.

Mr. Justice Grier also elaborately examined the questions, holding the laws under review not to be police regulations; that persons were objects of commerce; that Congress had legislated, covering the ground occupied by these local acts, and that the latter were therefore void. He did not discuss

the more general topic whether the mere grant to Congress of the power to regulate commerce inhibits the states, deeming that a mere abstract inquiry of no practical value in the cases before the court.

§ 360. Points decided in this Case. Five judges, therefore, agreed: (1.) That when Congress has passed a statute by virtue of its general power to regulate commerce, the states are absolutely prohibited from making any laws which will interfere with the exercise of national authority; and this is true although the two schemes of legislation are not directed to the self-same subject-matter. (2.) That persons as well as goods are the objects of commerce. (3.) That the conceded power to adopt regulations of internal police does not enable the states to pass laws similar to those under review. These conclusions, thus reached after a long and somewhat bitter contest, are in entire harmony with the propositions drawn from Gibbons v. Ogden, and Brown v. Maryland, and stated in § 338.

The grounds of the dissenting judges were numerous; the general concurrent power of the states; the authority to pass police regulations; a denial that persons can be the objects of commerce, and the consequent result that Congress has no authority to legislate respecting the importation of persons, that matter being left exclusively to the states. These were the important positions adopted and enforced by the minority.

This was the last great contest in the Supreme Court between the forces of national and of state sovereignty. The national idea was triumphant through the steadiness of two southern members of the court, Wayne of Georgia, and Catron of Tennessee.

§ 361. Cooley v. The Port Wardens. In 1851 the case of Cooley v. The Wardens of the Port of Philadelphia1 was decided. It involved the question whether states may pass laws establishing and regulating pilots, and prescribing certain duties to the masters of vessels arriving in port, in re

1 12 How. 299. And this case has been since approved and followed. Wilson v. McNamee, 102 U. S. 572. ED.

spect to such pilots. It was urged that this power was exclusively in Congress, under the general grant to regulate commerce. The opinion of the court was given by Mr. Justice Curtis, and here we shall find the court beginning to state the general rule in a form somewhat different from that which it had used since the time of Gibbons v. Ogden. The judgment of the court held, that pilot laws are regulations of commerce; that the power to regulate commerce includes various subjects, upon some of which there should be a uniform rule, and upon others, different rules in different localities; that the power is exclusive in Congress in the former, but not so in the latter class; that Congress had not legislated so as to establish any common system of pilotage, but on the contrary had exhibited a plain intention to leave this matter to the several states; that there being no act of Congress, the statute of Pennsylvania should be upheld. The whole scope and tenor of the reasoning in this judgment concedes that Congress may pass systems of pilot regulations, and that, in such case, the several states would be deprived of their jurisdiction.

§ 362. It cannot be claimed that the case of Cooley v. The Port Wardens in any degree lowers the standard of the national authority, and exalts that of the states. In fact, the rule as here stated is even stronger than had ever before received the sanction of the court. For it is declared that in respect to one class of commercial regulations the power of Congress is, ipso facto, exclusive, whether the power be exercised or not; but in respect to another class of regulations the power is only exclusive when Congress shall have acted under it, and until such action the states have a concurrent jurisdiction. Whatever individual judges may have said, the court had never before gone further than to assert the latter rule in respect to all species and classes of commercial regulations.

It is evident, also, that the decision is in complete harmony with the prior cases in the same court. Pilot laws are regulations of commerce; they also fall within the department of police rules, for they relate to the well-ordered gov

ernment of harbors, and of vessels therein. As Congress had passed no general statute on the subject of pilotage, and no statute applying to the port of Philadelphia, the door was open for state legislation. It would be a very forced. construction to say that the navigation and importation laws covered this subject-matter.

§ 363. Pennsylvania v. The Wheeling Bridge Company. In 1851 was first decided the case of Pennsylvania v. The Wheeling Bridge Company. The facts necessary to our purpose were few. The State of Virginia had incorporated the defendants, and authorized them to construct a suspension bridge across the Ohio River at Wheeling, which had been done. The State of Pennsylvania, deeming her public interests injured by this bridge, brought a suit in the Supreme Court, praying that the bridge might be removed as a nuisance. The first question discussed and decided was one of jurisdiction merely, whether the suit could be maintained. This was answered in the affirmative, but as it is entirely foreign to our present inquiry, I pass it by. It appeared, in fact, that the bridge did hinder the passage of boats ascending and descending the river to and from points above; and at certain stages of water entirely prevented the transit of large boats. It also appeared that Congress had repeatedly recognized the Ohio as a navigable stream and channel of commerce, but had never enacted any laws touching the erection of bridges over that watercourse. The plaintiff claimed that the bridge was a nuisance, and that its owners, the company, could not justify their injury by an appeal to the act of the Virginia legislature, because that statute, in authorizing a bridge which did, in fact, hinder free commerce on the Ohio, was prohibited by the power given to the general government, and laws passed in execution thereof.

§ 364. Judgment of the Court. These positions were adopted by the court, which held, that the power to regulate commerce among the states extends to the navigable streams whereon that commerce is carried; that commerce includes navigation; that Congress had recognized the Ohio as a 1 13 How. 518.