entered. On the trial the defendant excepted to the opinion of the court, admitting as evidence the note, protest, etc. A writ of error 282*] being prosecuted to the Supreme Court of Alabama, the judgment of the Circuit Court was affirmed.

In the Supreme Court the following assignment of errors was made:

"1. That it appears from the record and the note upon which the suit is founded, and which is made a part of it by the bill of exceptions, that the said promissory note was made payable to B. Gayle, cashier, and that the said note has not been assigned to the said branch bank, nor was it alleged or proved, as the judgment entry shows, that the said note was made or given to the said branch bank by the name of B. Gayle, nor that B. Gayle acted as the agent of the said bank in taking said note; and that it doth not appear, from the record, that the said branch bank has any interest in the said note.

"2. That there is error in this, that it was not proved to the court below that Jacob J. Marsh, who returned the notice executed, styling himself agent for the said branch bank, nor that his handwriting was proved; but, on the contrary, it is stated in the bill of exceptions that there was no proof to that effect." A motion is made to dismiss this cause for want of jurisdiction, and on looking into the record it is clear there is no ground on which this court can revise une judgment of the Supreme Court of Alabama. No question was made under the twenty-fifth section of the Judiciary Act of 1789; nor does it appear that any law of Alabama, which impaired the obligation of the contract, influenced the judgment of the Supreme Court.

GEORGE SMITH, Plaintiff in Error,

ง.

WILLIAM TURNER, Health Commissioner of the Port of New York.

JAMES NORRIS, Plaintiff in Error,

4.

THE CITY OF BOSTON.

State law imposing tax on alien passengers landed at State ports, unconstitutional.

chusetts, imposing taxes upon alien passengers arriving in the ports of those States, declared to be contrary to the Constitution and laws of the United States, and therefore null and void. Inasmuch as there was no opinion of the court, as a court, the reporter refers the reader to the opinions of the judges for an explanation of the statutes and the points in which they conflicted with the Constitution and laws of the United States.

Statutes of the States of New York and Massa

HESE were kindred cases, and were argued T this court by writs of error issued under the together. They were both brought up to twenty-fifth section of the Judiciary Act; the the Court for the Trial of Impeachments and case of Smith v. Turner being brought from Correction of Errors of the State of New York, and the case of Norris v. The City of Boston from the Supreme Judicial Court of Massachucourt connect the two cases so closely, that the The opinions of the justices of this same course will be pursued in reporting them which was adopted in the License Cases. Many of the arguments of counsel relate indiscrim inately to both. A statement of each case will, therefore, be made separately, and the arguate class as far as practicable. ments and opinions be placed in their appropri

setts.

Smith v. Turner.

In the first volume of the Revised Statutes

The law is strictly remedial. It in no respect affects the obligation of the contract. Neither the manner nor the time of payment is changed. The bank, being the holder of the note, having the beneficial interest in it, is authorized by the statute to sue in its own name. This is nothing more than carrying out the contract according to its original in

tendment.

The cause is dismissed.

Order.

This cause came on to be heard on the transcript of the record of the Supreme Court of 283*] the State of Alabama, and on the *motion of Mr. Inge, of counsel for the defendants in error, to dismiss this writ of error for the want of jurisdiction; on consideration whereof, it is now here ordered and adjudged by this court, that this cause be, and the same is hereby dismissed for the want of jurisdiction.

superintendence of a physician and certain commissioners of health.

health commissioner shall demand and be enThe seventh section provides, that "the titled to receive, and in case of neglect or refusal to pay shall sue for and recover, in his name of office, *the following sums [*284 from the master of every vessel that shall arrive in the port of New York, viz.:

"1. From the master of every vessel from a foreign port, for himself and each cabin passenger, one dollar and fifty cents; for each steerage passenger, mate, sailor, or mariner, one dollar.

"2. From the master of each coasting vessel, but no coasting vessel from the States of New for each person on board, twenty-five cents; Jersey, Connecticut, and Rhode Island shall pay for more than one voyage in each month, computing from the first voyage in each year."

NOTE. Power of Congress to regulate commerce, Power of State to tax commerceState licenses. see note to 6 L. ed. U. S. 23, 678; 29 L. ed. U. S. 158; 32 L. ed. U. S. 229; 37 L. ed. U. S. 216; 88 L. ed. U. S. 1041.

"Sec. 7th. This act shall take effect from and after the passage of the same, April 20th, 1837.'

"And the jury further find, that the twentyeighth and twenty-ninth sections, above referred to, are in the words following, to wit:

"Sec. 28th. If any master or commanding officer of any vessel shall land, or permit to be landed, any alien passengers, contrary to the provisions of the preceding section, the master or commanding officer of such vessel, and the owner or consignee thereof, shall forfeit the sum of two hundred dollars for every alien passenger so landed; provided always, that the provisions aforesaid shall not be construed to extend to seamen sent from foreign places by consuls or vice-consuls of the United States.

"Sec. 29th. If any master or commanding officer of any vessel shall land any alien passenger at any place within this State other than that to which such vessel shall be destined, 287*] *with_intention to avoid the requirements aforesaid, such master or commanding officer shall forfeit the sum of one hundred dollars for every alien passenger so landed.'

"And the jury further find, that the plaintiff in the above acton is an inhabitant of St. Johns, in the province of New Brunswick and kingdom of Great Britain; that he arrived in the port of Boston on or about the twentysixth day of June, A. D. 1837, in command of a certain schooner called the Union Jack, of and belonging to said port of St. Johns; there was on board said schooner at the time of her arrival in said port of Boston, nineteen persons, who were passengers in said Union Jack, aliens to each and every of the States of the United States, but none of them were lunatics, idiots, maimed, aged, or infirm.

"That prior to the landing of said passengers the sum of two dollars for each and every passenger was demanded of the plaintiff by Calvin Bailey in the name of the city of Boston, and said sum, amounting to thirty-eight dollars, was paid by the plaintiff to said Bailey, for permission to land said alien passengers in said Boston; said sum being paid by the plaintiff under a protest that the exacting the same was illegal.

"That said Calvin Bailey was the regularly appointed boarding officer for said city of Boston, chosen by the City Council (consisting of the mayor and aldermen) in pursuance of said act, entitled 'An Act relating to alien passen gers'; that as such, said Bailey demanded and received said sum of thirty-eight dollars.

But whether upon the aforesaid facts the defendant did promise, the jury are ignorant. "If the court shall be of opinion that the aforesaid facts are sufficient to sustain the plaintiff's claim, then the jury find that the defendant did promise, in manner and form as the plaintiff hath alleged, and assess damages in the sum of thirty-eight dollars.

"But if the court are of opinion that the aforesaid facts are not sufficient to sustain the

plaintiff's claim, then the jury find that the defendant did not promise in manner and form as the plaintiff hath alleged."

Upon this special verdict the court gave judgment for the defendant. from which judg

The case of Smith v. Turner was argued at December Term, 1845, by Mr. Webster and Mr. D. B. Ogden for the plaintiff in error, and by Mr. Willis Hall and Mr. John Van Buren for the defendant in error; at December Term, 1847, by *the same counsel upon each [*288 side; and at December Term, 1848, by Mr. John Van Buren, for the defendant in error. The case of Norris v. The City of Boston was argued at December Term, 1846, by Mr. Webster and Mr. Choate for the plaintiff in error, and by Mr. Davis for the defendant in error; at December Term, 1847, by Mr. Choate for the plaintiff in error; and at December Term, 1848, by Mr. Webster and Mr. J. Prescott Hall for the plaintiff in error, and by Mr. Davis and Mr. Ashmun for the defendant in error.

It is impossible to report all these arguments. If it were done, these cases alone would require a volume. The Reporter selects such sketches of the arguments as have been kindly furnished to him by the counsel themselves, and omits those for which he would have to rely upon his own notes.

The arguments reported are those of Mr. D. B. Ogden and Mr. J. Prescott Hall for the plaintiff in error, and Mr. Davis, and Mr. Willis Hall, and Mr. Van Buren, for the defendant in error. Mr. Ogden argued the New York, and Mr. J. Prescott Hall the Boston case. On the other side, the New York case was argued by Mr. Willis Hall and Mr. Van Buren, and the Boston case by Mr. Davis. Although the arguments are placed in the usual order, namely, one for the plaintiff in the first place, then those for the defendant in error, and then a concluding argument for the plaintiff in error, yet it is certain that some of these counsel never heard the arguments to which, from this collocation they might be supposed to reply, arising from the different terms at which the arguments were made. The Reporter has observed the order of time in arranging them as he has done. He knows that some injustice is done to the counsel, but it is impossible to avoid it.

The points stated upon both sides were as follows:

Norris v. City of Boston. On the part of the plaintiff in error it will be contended:

1. That the act in question is a regulation of commerce of the strictest and most important class, and that Congress possesses the exclusive power of making such a regulation.

And hereunder will be cited 11 Pet. 102; 4

Wash. C. C. 379; 3 How. 212; 14 Pet. 541; 4 Met. 285; 2 Pet. 245; 9 Wheat. 1; 12 Wheat. 436; Federalist, No. 42; 3 Cow. 473; 1 Kent. 5th ed.; 2 Story's Com. on Const. 506; 15 Pet. 506; 3 N. H. 499.

2. That the act is an impost or duty on imports, and so expressly prohibited by the Constitution, or is in fraud of that prohibition.

*And hereunder will be cited 4 Met. [*289 285; 12 Wheat. 436; Dig. lib. 1, tit. 3, De Leg. et Senat. Cons. sec. 29, 3 Cow. 738; 14 Pet. 570.

3. That it is repugnant to the actual regulations and illegally manifested will of Congress.

9 Wheat. 210; 4 Met. 295; 11 Pet. 137; 12 Wheat. 446; 5 Wheat. 22; 6 Pet. 515; 15 Pet. 509; 14 Pet. 576; Laws U. S. 1799, c. 128, sec. 46; 1 Story's Laws, 612, 1819, c. 170; 3 Story's Laws, 1722, Laws of Naturalization, 1802, c. 28; 1816, c. 32; 1824, c. 186.

D. Webster,

R. Choate,

For Plaintiff in error. Smith v. Turner.

The points on behalf of the defendant in error were thus stated by Mr. Willis' Hall and Mr. Van Buren:

I. This case involves precisely the same question that was submitted to this court in the case of The City of New York v. Miln, 11 Peters, 102, which, after two discussions, was decided, on full consideration, in favor of the State power.

II. The Constitution of the United States is a specific grant of certain enumerated powers, made to the Union by existing State sovereignties, coupled with prohibitions upon the States. If a given power is not granted to the Union or prohibited to the States, it is a demonstration that it belongs to the States.

III. The quarantine laws of the State of New York have been sanctioned and adopted by Congress, and frequently adverted to by this court with approbation.

IV. The quarantine charges are merely a common law toll, granted by the State to the Board of Health of the city of New York, in the exercise of an undoubted right, which the State has never, directly or indirectly, given up or abandoned.

But if, on the other hand, the court think the tenth section applicable to this law, then the section itself prescribes the only redress. VII. It is not à regulation of commerce, because not so intended in fact nor by presumption of law; all the physical instruments or agents on which a regulation of commerce can act are merely means, and as such common to the States, unless expressly prohibited to them. VIII. It is not "an impost or duty upon imports," because passengers voluntarily immigrating into the country by sea or land can in no sense be called "imports."

IX. The law in question, so far from being an infringement of federal power, is exclusively within the State power. The end is the health of the city of New York, and of those who enter it, which is an object not committed to Congress. The means, a tax upon passengers equally_removed from federal jurisdiction.

Mr. D. B. Ogden, for the plaintiff in error: This is a second argument in this case, which has been ordered by the court, it must be presumed, in consequence of a difference of opinion upon the case among the members of the court by whom the former argument was

heard.

This admonishes me, that, however confident I may heretofore have felt that the judgment of the Court for the Correction of Errors in New York ought to be reversed, there must be great and serious doubts upon the subject. I therefore enter upon this second arguinent with a confidence certainly much lessened, but with a hope of success by no means extinguished.

1. The people of the State of New York have acted in good faith. They have not, under color of quarantine or health laws, attempted to regulate commerce. They have had no object in view but protection from infectious diseases.

2. The people of the State of New York, when they adopted the federal Constitution, did not understand it as depriving them of this right. They did not suppose their harbors were to be taken from them, but only that they were to allow the Union to use them for purposes of war and commerce. Had they understood it as now claimed, there is no hazard in saying it never would have been adopted.

3. The construction of the federal Constitu290*] tion on this *point contended for by the defendant in error is contemporaneous with its formation, and has been continued without objection for half a century.

The rule in Stewart's case therefore applies, "that a contemporary exposition of the Constitution of the United States, adopted in practice, and acquiesced in for a number of years, fixes the meaning of it, and the court will not control it."

VI. If the law in question is deemed to be in the nature of an inspection law, it lays no "duty on imports or exports," and therefore comes not within the prohibitions or provisions of the tenth section of the first article, or in any manner within the cognizance of the federal Constitution.

*It is to be expected, that, in this [*291 complex system, composed of two governments, difficulties will arise as to the true line of distinction between the powers of the one government and the other.

To ascertain and point out with precision where that line is, and to say, both to the general and to the State governments, thus far shalt thou go and no farther, is the high and exalted duty of this honorable court. It is a duty imposed upon it by the people of the United States, who have declared in their Constitution that the judicial power of the government shall extend to all cases in law or equity arising under the Constitution. court ever held so exalted a station. It represents the sovereignty of the people of a great nation. Its decrees are the decrees of the people, and it is intended to secure to the people the benfits of their Constitution by keeping within their proper constitutional bounds all the other departments of both the general and State governments.

No

You are now called upon by the plaintiff in error in this case to examine and decide upon the constitutionality and validity of a law passed by one of the State Legislatures. feel and acknowledge, not only the importance, but the great delicacy, of the question before

me.

I

I know, to use the language of the late Chief Justice in the great case of Fletcher v. Peck,

that "this court will not declare a law of a State to be unconstitutional, unless the opposition between the Constitution and the law be clear and plain." The duty of deciding upon the constitutionality of this law, you must perform. You will decide it cautiously, not rashly-with great care and deliberation, but at the same time with that fearlessness which the people of the United States, and my clients, who consider their constitutional rights violated by this law, have a right to expect at your hands.

Before I proceed to the argument of the particular points which arise in this case, I hope I may be pardoned in making one or two preliminary remarks. They are made with perfect respect for the court, and for every member of it; and they are made because, in my humble opinion, they ought never to be lost sight of by the court when considering a constitutional question.

In all our courts the judges are bound to decide according to the law of the land; not according to what they think the law ought to be, but according to the manner in which they find it settled by adjudged cases. The judges are bound by the most solemn obligations to decide according to the law as they find it. In cases where, perhaps, it was originally a question of great doubt what the law was, but 292*] it has now been rendered *certain by a variety of judicial decisions, no judge would, in ordinary cases, although he might think the law should have been settled otherwise, feel himself at liberty to decide contrary to a series of adjudged cases upon the subject, but would feel himself bound to yield his opinion to the authority of such cases.

This court have always, in ordinary cases between man and man, adhered to this rule.

tion of the Constitution should be settled. It is all-important to every citizen of the United States that he should know what his constitutional rights and duties are. This, in many cases, can only be learned by the decisions of this court. And if those decisions are to be changed with every change of judges, what are our constitutional rights worth? To-day they are one thing, to-morrow another.

Instead of being fixed and stable, they change with the opinions of every new judge, they become unstable as the wind, and our boasted constitutional rights may be said no longer to depend upon law, but we hold them according to the whims and caprice of the judges who may happen to be on the bench of this court.

*I press this point no further. I re- [*293 peat it, the observations which I have made upon it are submitted most respectfully to the court. I hope I have not pressed them in an offensive manner. I certainly mean not to do so. I feel their importance to my clients and to the people at large, and I hope the court. will excuse any undue earnestness in my manner.

My clients feel that their constitutional rights, as settled by former adjudications of this court, have been violated by the law of New York, and they claim the benefit of the construction of the Constitution as settled by those former adjudications.

There is one other point to which I wish to call the attention of the court prior to entering upon the argument of the case. The rights of the State governments were urged with great vehemence by the counsel for the defendant in error upon the former argument. And in every argument which I have ever heard in this court, in which the validity of State laws came in question, the same argument has been urged, and pressed with equal vehemence. I have views upon this subject which I wish briefly to submit to the consideration of the court.

The people of the United States, and the people of every State in the Union, having, by their conventions, adopted the Constitution of the United States, and thus become parties to it, have given and vested certain powers in the government of the United States; and in the strongest terms have declared that all thosepowers are to be exercised independent of all authority of the local State governments, because they have made it incumbent upon the members of the several State Legislatures to take an oath to support this Constitution, thus making the government of the United States, and intending to make it, supreme so far as the powers vested in it are granted by the people..