Page 40 U. S. 505
It is admitted that the power of taxation is common to the state
and federal governments, but this is not in its nature or effect a
repugnant power, and its exercise is vital to both governments. A
power may remain dormant, though the expediency of its exercise has
been fully considered. It is often wiser and more politic to
forbear than to exercise a power. A state regulates its own
internal commerce may pass inspection and police laws, designed to
guard the health and protect the rights of its citizens. But these
laws must not be extended so as to come in conflict with a power
expressly given to the federal government. It is enough to say that
the commercial power, as it regards foreign commerce, and commerce
among the several states, has been decided by this Court to be
exclusively vested in Congress.
Under the power to regulate foreign commerce, Congress imposes
duties on importations, gives drawbacks, passes embargo and
nonintercourse laws, and makes all other regulations necessary to
navigation to the safety of passengers and the protection of
property. Here is an ample range, extending to the remotest seas
where the commercial enterprise of our citizens shall go, for the
exercise of this power. The power to regulate commerce among the
several states is given in the same section and in the same
language. But it does not follow that the power may be exercised to
the same extent.
The transportation of slaves from a foreign country, before the
abolition of that traffic, was subject to this commercial power.
This would seem to be admitted in the Constitution, as it
provides
"The importation of such persons as any of the states, now
existing, shall think proper to admit shall not be prohibited by
Congress prior to the year 1808, but a tax or duty may be imposed
on such importation not exceeding ten dollars for each person."
An exception to a rule is said to prove the existence of the
rule, and this exception to the exercise of the commercial power,
may well be considered as a clear recognition of the power in the
case stated.
* The United States
are considered as a unit, in all regulations of foreign commerce.
But this cannot be the case,
Page 40 U. S. 506
where the regulations are to operate among the several states.
The law must be equal and general in its provisions. Congress
cannot pass a nonintercourse law as among the several states, nor
impose an embargo that shall affect only a part of them.
Navigation, whether on the high seas or in the coasting trade, is a
part of our commerce, and when extended beyond the limits of any
state, is subject to the power of Congress. And as regards this
intercourse, internal or foreign, it is immaterial whether the
cargo of the vessel consists of passengers or articles of
commerce.
Can the transfer and sale of slaves from one state to another,
be regulated by Congress under the commercial power? If a state may
admit or prohibit slaves at its discretion, this power must be in
the state, and not in Congress. The Constitution seems to recognize
the power to be in the states. The importation of certain persons,
meaning slaves, which was not to be prohibited before 1808, was
limited to such states, then existing, as shall think proper to
admit them. Some of the states at that time prohibited the
admission of slaves, and their right to do so was as strongly
implied by this provision, as the right of other states that
admitted them.
The Constitution treats slaves as persons. In the second section
of the first article, which apportions representatives and directs
taxes among the states, it provides,
"The numbers shall be determined by adding to the whole number
of free persons, including those bound to service for a term of
years, and excluding Indians not taxed, three-fifths of all other
persons."
And again, in the third section of the fourth article, it is
declared that
"No person held to service or labor in one state under the laws
thereof, escaping into another, shall, in consequence of any law or
regulation therein, be discharged from such service or labor, but
shall be delivered up on claim of the party to whom such service or
labor may be due."
By the laws of certain states, slaves are treated as property,
and the Constitution of Mississippi prohibits their being brought
into that state, by citizens of other states, for sale, or as
merchandise. "Merchandise" is a comprehensive term, and may include
every article of traffic, whether foreign or domestic, which
Page 40 U. S. 507
is properly embraced by a commercial regulation. But if slaves
are considered in some of the states, as merchandise, that cannot
divest them of the leading and controlling quality of persons, by
which they are designated in the Constitution. The character of
property is given them by the local law. This law is respected, and
all rights under it are protected by the federal authorities, but
the Constitution acts upon slaves as persons, and not as
property.
In all the old states, at the time of the revolution, slavery
existed in a greater or less degree. By more than one-half of them,
including those that have been since admitted into the Union, it
has been abolished or prohibited. And in these states, a slave
cannot be brought as merchandise or held to labor in any of them,
except as a transient person. The Constitution of Ohio declares,
that there shall be neither slavery nor involuntary servitude in
the state, except for the punishment of crimes. Is this provision
in conflict with the power in Congress to regulate commerce? It
goes much further than the Constitution of Mississippi. That
prohibits only the introduction of slaves into the state, by the
citizens of other states, as merchandise, but the Constitution of
Ohio not only does this, but it declares that slavery shall not
exist in the state. Does not the greater power include the lesser?
If Ohio may prohibit the introduction of slaves into it altogether,
may not the State of Mississippi regulate their admission? The
Constitution of the United States operates alike on all the states,
and one state has the same power over the subject of slavery as
every other state.
If it be constitutional in one state, to abolish or prohibit
slavery, it cannot be unconstitutional in another, within its
discretion, to regulate it. Could Ohio, in her Constitution, have
prohibited the introduction into the state, of the cotton of the
south, or the manufactured articles of the north? If a state may
exercise this power, it may establish a nonintercourse with the
other states. This no one will pretend, is within the power of a
state. Such a measure would be repugnant to the Constitution, and
it would strike at the foundation of the Union. The power vested in
Congress to regulate commerce among the several states, was
designed to prevent commercial conflicts among them. But whilst
Ohio
Page 40 U. S. 508
could not proscribe the productions of the south, nor the
fabrics of the north, no one doubts its power to prohibit slavery.
And what can more unanswerably establish the doctrine, that a state
may prohibit slavery, or, in its discretion, regulate it, without
trenching upon the commercial power of Congress? The power over
slavery belongs to the states respectively. It is local in its
character, and in its effects, and the transfer or sale of slaves
cannot be separated from this power. It is indeed an essential part
of it. Each state has a right to protect itself against the avarice
and intrusion of the slave dealer, to guard its citizens against
the inconveniences and dangers of a slave population. The right to
exercise this power, by a state, is higher and deeper than the
Constitution. The evil involves the prosperity, and may endanger
the existence of a state. Its power to guard against, or to remedy
the evil, rests upon the law of self-preservation; a law vital to
every community, and especially to a sovereign state.
* The meaning of this maxim is greatly misapprehended; that an
exception proves the rule, properly interpreted, means that an
exception tests or tries the rule. For this,
see
Worcester's Dict.
verb. Prove; as in 1 Thess. v. 21,
"Prove all things; hold fast that which is good."
TANEY, Ch.J.
I had not intended to express an opinion upon the question
raised in the argument in relation to the power of Congress to
regulate the traffic in slaves between the different states,
because the Court has come to the conclusion, in which I concur,
that the point is not involved in the case before us. But as my
brother McLEAN has stated his opinion upon it, I am not willing, by
remaining silent, to leave any doubt as to mine.
In my judgment, the power over this subject is exclusively with
the several states, and each of them has a right to decide for
itself whether it will or will not allow persons of this
description to be brought within its limits, from another state,
either for sale, or for any other purpose, and also to prescribe
the manner and mode in which they may be introduced, and to
determine their condition and treatment within their respective
territories, and the action of the several states upon this subject
cannot be controlled by Congress, either by virtue of its power to
regulate commerce or by virtue of any power conferred by the
Constitution of the United States. I do not, however, mean to argue
this question, and I state my opinion upon it on account
Page 40 U. S. 509
of the interest which a large portion of the Union naturally
feel in this matter, and from an apprehension that may silence,
when another member of the court has delivered his opinion, might
be misconstrued.
Another question of constitutional law has also been brought
into discussion -- that is to say whether the grant of power to the
general government to regulate commerce does not carry with it an
implied prohibition to the states to make any regulations upon the
subject, even although they should be altogether consistent with
those made by Congress. I decline expressing any opinion upon this
question because it is one step further out of the case really
before us, and there is nothing in the character of the point that
seems to require a voluntary declaration of opinion by the members
of the Court.
It is admitted on all hands that if a state makes any regulation
of commerce inconsistent with those made by Congress or in any
degree interfering with them, the regulation of the state must
yield to those of the general government. No one, I believe, doubts
the controlling power of Congress in this respect, nor their right
to abrogate and annual any and every regulation of commerce made by
a state. But the question upon which different opinions have been
entertained is this: would a regulation of commerce by a state be
valid until Congress should otherwise direct, provided such
regulation was consistent with the regulations of Congress, and did
not in any manner conflict with them? No case has yet arisen which
made it necessary in the judgment of the court to decide this
question. It was treated as an open one in the case of
New York v.
Miln, 11 Pet. 102, decided at January term, 1837,
as will appear by the opinions then delivered, and since that time
the point has never in any form come before the Court. Nor am I
aware that there is any reason for supposing that such a case is
likely to arise. For the states have very little temptation to make
a regulation of commerce when they know it may be immediately
annulled by an act of Congress, even if it does not, at the time it
is made by the state, conflict with any law of the general
government. Besides, the regulations of Congress, already made,
appear to cover the whole, or very nearly the whole, ground, and in
the very few
Page 40 U. S. 510
instances in which the laws of states have been held to be
regulations of commerce, and on that account declared to be void,
the state regulation was found to be in conflict with some existing
regulation of the general government, and consequently the question
above stated did not arise. The point in dispute, therefore, would
seem to be but little more than an abstract question which the
court may never be called on to decide, and perhaps, like other
abstract questions, it is destined on that very account to be more
frequently and earnestly discussed. But until some case shall bring
it here for decision, and until some practical purpose is to be
answered by deciding it, I do not propose to engage in the
discussion, nor to express an opinion.
STORY, THOMPSON, WAYNE and McKINLEY, JUSTICES, concurred with
the majority of the Court in opinion that the provision of the
Constitution of the United States which gives the regulation of
commerce to Congress did not interfere with the provision of the
Constitution of the State of Mississippi which relates to the
introduction of slaves as merchandise or for sale.
BALDWIN, JUSTICE.
As this case has been decided on its merits, and the opinion of
the Court covers every point directly involved, I had not thought
that any merely collateral question would have been noticed, for I
cannot believe that in the opinion of any of the judges, it is at
all necessary to inquire what would have been the result if the
Court had held that the contract on which this suit was brought was
void by the laws or Constitution of Mississippi. The questions
which would have arisen in such an event are of the highest
importance to the country, and in my opinion ought not to be
considered by us unless a case arise in which their decision
becomes indispensable when too much deliberation cannot be had
before a judgment is pronounced upon them. But since a different
course has been taken by the judges who have preceded me, I am not
willing to remain silent, lest it may be inferred that my opinion
coincides with that of the judges who have now expressed
theirs.
That the power of Congress "to regulate commerce among
Page 40 U. S. 511
the several states" is exclusive of any interference by the
states has been in my opinion conclusively settled by the solemn
opinions of this Court in
Gibbons v.
Ogden, 9 Wheat. 186-222, and in
Brown
v. Maryland, 12 Wheat. 438-446. If these decisions
are not to be taken as the established construction of this clause
of the Constitution, I know of none which is not yet open to doubt;
nor can there be any adjudications of this Court, which must be
considered as authoritative upon any question, if these are not to
be so on this.
Cases may indeed arise wherein there may be found difficulty in
discriminating between regulations of "commerce among the several
states" and the regulations of "the internal police of a state,"
but the subject matter of such regulations of either description
will lead to the true line which separates them when they are
examined with a disposition to avoid a collision between the powers
granted to the federal government by the people of the several
states and those which they have reserved exclusively to
themselves. "Commerce among the states," as defined by the Court,
is "trade," "traffic," "intercourse," and dealing in articles of
commerce between states, by its citizens or others, and carried on
in more than one state. "Police" relates only to the internal
concerns of one state, and commerce within it is purely a matter of
internal regulation, when confined to those articles which have
become so distributed as to form items in the common mass of
property. It follows that any regulation which affects the
commercial intercourse between any two or more states, referring
solely thereto, is within the powers granted exclusively to
Congress, and that those regulations which affect only the commerce
carried on within one state or which refer only to subjects of
internal police, are within the powers reserved. The opinion of
this Court in
New York v.
Miln, 11 Pet. 130, draws the true line between the
two classes of regulations, and gives an easy solution to any doubt
which may arise on the clause of the Constitution of Mississippi,
which has been under our consideration. It does not purport to be a
regulation of police, for any defined object connected with the
internal tranquility of the state, the health or morals of the
people -- it is general in its terms, it is aimed at the
introduction of slaves, as merchandise,
Page 40 U. S. 512
from other states, not with the intention of excluding diseased,
convicted, or insurgent slaves, or such as may be otherwise
dangerous to the peace or welfare of the state.
Its avowed object is to prevent them from being the subjects of
commercial intercourse with other states, when introduced for the
purpose of sale, while the next clause expressly legalizes their
introduction, by settlers within the state for their own use,
leaving them at liberty to sell the slaves so introduced
immediately afterwards. It was not intended to affect the condition
of the slaves, for there is no provision for their emancipation, or
other disposition, when introduced into the state for sale, so that
the only effect which the broadest construction could give to the
Constitution of Mississippi, would be, to prohibit the introduction
into that state, of slaves from other states, as articles of
commerce, without the least reference to any object of internal
police. Their introduction was legal or illegal, according to their
disposition when introduced; if intended for sale, it was illegal;
if for use by settlers in the state, it was legal, whatever might
be the condition of the slave as to health, or his character as to
morals. If we adopt the construction contended for by the
plaintiffs in error, that it operates by its own force, the
Constitution of Mississippi must be taken to be a law of that state
in relation to the regulation of the traffic or dealing in slaves
brought there for the purpose of sale; in other words, a regulation
of commerce among the several states, if slaves are the subjects of
such commerce, according to the true meaning of the Constitution of
the United States, as expounded by this Court.
Other judges consider the Constitution as referring to slaves
only as persons, and as property, in no other sense than as persons
escaping from service; they do not consider them to be recognized
as subjects of commerce, either "with foreign nations," or "among
the several states;" but I cannot acquiesce in this position. In
other times, and in another department of this government, I have
expressed my opinion on this subject; I have done it in judgment in
another place, 1 Bald. 576 &c., and feel it a duty to do it
here, however unexpectedly the occasion may have arisen, and to
speak plainly and explicitly, however unsuited to the spirit of the
times, or prevalent opinions anywhere,
Page 40 U. S. 513
or by any persons, my views may be. That I may stand alone among
the members of this Court does not deter me from declaring that I
feel bound to consider slaves as property by the law of the states
before the adoption of the Constitution and from the first
settlement of the colonies; that this right of property exists
independently of the Constitution, which does not create, but
recognizes and protects it from violation by any law or regulation
of any state in the cases to which the Constitution applies.
It was a principle of the revolution and the practical
construction of the Declaration of Independence that "necessity or
expediency" justified "the refusal of liberty in certain
circumstances to persons of a particular color," and that those to
whom their services and labor were due were their owners." 1 Laws
U.S. 24-25. In the 7th article of the preliminary treaty of peace
with Great Britain, there is this expression, "negroes, or other
property,"
id., 198; also, in the 7th article of the
definitive treaty,
id., 204, which conclusively shows the
then accepted understanding of the country. And that it was not
different after the adoption of the Constitution appears as
conclusively, by the 1st article of the Treaty of Ghent, which
refers to "any slaves, or other private property."
Id.,
694. It would be a strange position indeed if we were to consider
slaves as persons merely, and not property, in our commercial
relations with foreign nations, and yet declare them to be "private
property," in our diplomatic relations with them, and in the most
solemn international acts, from 1782 to 1815.
At the adoption of the Constitution, slaves were as much the
subjects and articles of "commerce with foreign nations," and among
"the several states," as any other species of merchandise; they
were property for all purposes and to all intents; they were bought
and sold as chattels; the property in them passed by a bill of
sale, by descent, or by will, and they were sold on execution
wherever slavery existed. Their importation was lawful, and all
power was taken from Congress to prohibit it, prior to 1808, so
long as the states should think proper to admit them; though a duty
or tax might be imposed on such persons, not exceeding ten dollars
for each. Art. 1, § 9.
This clause of the Constitution has been held to be an
exception
Page 40 U. S. 514
to the power of Congress to regulate commerce, the word
"migration" applying to those persons who come voluntarily, and
"importation" applying to those persons who are brought
involuntarily,
22 U. S. 9 Wheat.
216; so that if this clause had not been introduced, the power to
prohibit the importation would have resulted from the general grant
of power to regulate commerce. For no rule is better settled than
that the effect of an exception is to take the case excepted out of
the general provision, thereby excluding what would otherwise be
embraced.
25 U. S. 12
Wheat. 440. The conclusion therefore is inevitable that slaves were
embraced by the Constitution as the subjects of commerce and
commercial regulations to the same extent as other goods, wares, or
merchandise. On no other construction can the ninth section of the
first article be taken as an exception to the third clause of the
eighth section, and when so taken, there is no escape from the
construction declared in the opinion of the Court in
Gibbons v.
Ogden. Besides, if the power to regulate commerce does not
include the power to prohibit the importation of slaves into the
United States after 1808, when the exception in the ninth section
of the first article does not operate, such power is not to be
found in any other grant by the Constitution, the consequence of
which will be that all the existing laws for abolishing the slave
trade are unconstitutional, or at the best their power will rest
entirely on the remote and doubtful implication of a new grant, by
the ninth section, of a power, after 1808, which would not have
existed had not that section been introduced. This would be a
dangerous rule by which to construe the Constitution, and as
inconsistent with its whole scope, as it would be hazardous to its
permanency. On the other hand, by holding the power to regulate
commerce to be the grant of a power to abolish the foreign slave
trade, by taking the ninth section as a temporary exception, and
the exception to be inoperative after 1808, the slave trade laws
since passed are clearly constitutional, under an expressly granted
power, which is a much more satisfactory position on which to plant
them, than any implication or inference.
Slaves, then, being articles of commerce with foreign nations up
to 1808 and until their importation was prohibited by Congress,
they were also articles of commerce among the several states, which
recognized them as property capable of being transferred
Page 40 U. S. 515
from hand to hand as chattels. Whether they should be so held or
not, or what should be the extent of the right of property in the
owner of a slave, depended on the law of each state; that was and
is a subject on which no power is granted by the Constitution to
Congress; consequently none can be exercised, directly or
indirectly. It is a matter of internal police over which the states
have reserved the entire control; they and they alone can declare
what is property capable of ownership, absolute or qualified; they
may continue or abolish slavery at their pleasure, as was done
before, and has been done since the Constitution, which leaves this
subject untouched and intangible, except by the states.
As each state has plenary power to legislate on this subject,
its laws are the test of what is property; if they recognize slaves
as the property of those who hold them, they become the subjects of
commerce between the states which so recognize them, and the
traffic in them may be regulated by Congress, as the traffic in
other articles, but no further. Being property by the law of any
state, the owners are protected from any violations of the rights
of property by Congress, under the Fifth Amendment of the
Constitution; these rights do not consist merely in ownership; the
right of disposing of property of all kinds is incident to it,
which Congress cannot touch. The mode of disposition is regulated
by the state of common law, and but for the first clause in the
second section of the Fourth Article of the Constitution of the
United States, a state might authorize its own citizens to deal in
slaves and prohibit it to all others. But that clause secures to
the citizens of all the states "all privileges and immunities of
citizens" of any other state, whereby any traffic in slaves or
other property, which is lawful to the citizens or settlers of
Mississippi, with each other, is equally protected when carried on
between them and the citizens of Virginia. Hence it is apparent
that no state can control this traffic so long as it may be carried
on by its own citizens within its own limits; as part of its purely
internal commerce, any state may regulate it according to its own
policy, but when such regulation purports to extend to other states
or their citizens, it is limited by the Constitution, putting the
citizens of all on the same footing as their own. It follows
likewise that any power
Page 40 U. S. 516
of Congress over the subject is, as has been well expressed by
one of the plaintiffs' counsel, conservative in its character, for
the purpose of protecting the property of the citizens of the
United States, which is a lawful subject of commerce among the
states, from any state law which affects to prohibit its
transmission for sale from one state to another, through a third or
more states.
Thus, in Ohio and those states to which the ordinance of 1787
applies or in those where slaves are not property, not subjects of
dealing or traffic among its own citizens, they cannot become so
when brought from other states; their condition is the same as
those persons of the same color already in the state, subject in
all respects to the provisions of its law, if brought there for the
purposes of residence or sale. If, however, the owner of slaves in
Maryland, in transporting them to Kentucky or Missouri, should pass
through Pennsylvania or Ohio, no law of either state could take
away or affect his right of property, nor, if passing from one
slave state to another, accident or distress should compel him to
touch at any place within a state, where slavery did not exist.
Such transit of property, whether of slaves or bales of goods, is
lawful commerce among the several states which none can prohibit or
regulate, which the Constitution protects, and Congress may and
ought to preserve from violation.
Any reasoning or principle which would authorize any state to
interfere with such transit of a slave, would equally apply to a
bale of cotton, or cotton goods, and thus leave the whole
commercial intercourse between the states liable to interruption to
extinction by state laws, or Constitutions. It is fully within the
power of any state to entirely prohibit the importation of slaves,
of all descriptions, or of those who are diseased, convicts, or of
dangerous or immoral habits or conduct; this is a regulation of
police, for purposes of internal safety to the state, or the health
and morals of its citizens, or to effectuate its system of policy
in the abolition of slavery. But where no object of police is
discernible in a state law of Constitution, nor any rule of policy,
other than that which gives to its own citizens a "privilege,"
which is denied to citizens of other states, it is wholly
different. The direct tendency of all such laws is partial,
antinational, subversive of the harmony which should exist among
the states, as well as inconsistent with the most
Page 40 U. S. 517
sacred principles of the Constitution which on this subject have
prevailed through all time, in and among the colonies and states,
and will be found embodied in the second resolution of the Virginia
legislature in 1785. 1 Laws U.S. 53. For these reasons, my opinion
is that had the contract in question been invalid by the
Constitution of Mississippi, it would be valid by the Constitution
of the United States. These reasons are drawn from those principles
on which alone this government must be sustained, the leading one
of which is that wherever slavery exists, by the laws of a state,
slaves are property in every constitutional sense, and for every
purpose, whether as subjects of taxation, as the basis of
representation, as articles of commerce, or fugitives from service.
To consider them as persons merely, and not property, is, in my
settled opinion, the first step towards state of things to be
avoided only by a firm adherence to the fundamental principles of
the state and federal governments, in relation to this species of
property. If the first step taken be a mistaken one, the successive
ones will be fatal to the whole system. I have taken my stand on
the only position which, in my judgment, is impregnable, and feel
confident in its strength, however it may be assailed in public
opinion, here or elsewhere.
CATRON, JUSTICE, having been indisposed, did not sit in this
case. McKINLEY, JUSTICE, dissented from the opinion of the court,
as delivered by THOMPSON, JUSTICE, and STORY, JUSTICE, also
dissented;@ both these justices considering the notes sued upon
void. BARBOUR, JUSTICE, died before the case was decided.
These causes came on to be heard, on the transcript of the
record from the Circuit Court of the United States for the Eastern
District of Louisiana, and were argued by counsel, on consideration
whereof it is now here ordered and adjudged by this Court that the
judgment of the said circuit court in this cause be and the same is
hereby affirmed, with costs and damages, at the rate of six
percentum per annum.