Page:Immigration and the Commissioners of Emigration of the state of New York.djvu/205

Rh, 16 Peters, 539. These cases decide that the States have the power to expel and exclude. There can be no concurrent power respecting such a subject matter. Such a power is necessarily discretionary. Massachusetts fears foreign paupers; Mississippi, free negroes. The rightfulness of taking bonds is in controvertible—self-defence against European almshouses. The Constitution does not distinguish between different grades of aliens. We cannot enquire whether their persons were paupers or not. The Act of Congress of 1819 keeps carefully within Federal jurisdiction. It says nothing about the landing of passengers, nor about their health or condition, which it would have done had it meant to vindicate a right to landing anybody. This act of Massachusetts only exacts security against pauperism. We cannot admit emancipated slaves. This act of New York is a quarantine law, and no more. The provisions for making it self-supporting are legitimate incidents."

Nelson, J., fully concurred with Taney, C. J. "States," says Woodbury, J., also of the minority, "may keep off foreign paupers, even paupers from other States." (Revised Statutes of New Hampshire, chapter 67; 5 Howard, 629; Colonial Charter of Massachusetts, 1639, p. 113, and 1692, p. 252). Indemnity from shipmasters has been required in Massachusetts since 1701, and has assumed its present form in 1837, after the Milne decision. The present measure is one of police regulation, and fair. The money is wholly applied to the support of foreign paupers. That money is called for as security, and not a bond, is no objection. Police measures have not been ceded to the Federal Government, but are open to the States, if honestly administered as such (License cases, 5 Howard, 624; Baldwin's Views, 184-188; United States vs. Bedford Bridge, 1 Wood vs. Minn, 423). The principle was settled in Milne. All governments may exclude foreigners (Vattel, chapter 19, § 201; 5 Howard, 328). The alien act (June 17, 1798, 1 St. at L., 571) was considered unconstitutional, because it was believed this right had not been surrendered (4 Elliott, Debates, 581, Virginia Resolutions of 1798). The old Congress in 1787, after the adoption of the present Constitution, requested the States to exclude foreign malefactors. As against foreigners, the States have never surrendered this power.