Lessee, the Supreme Court held that Congress could not establish or regulate ferries.

§383. (3.) The subject-matter of Commerce. Under this head would properly fall all regulations touching the importation and exportation of particular articles and persons. It is true that Congress has done little under this branch of its authority, except in its revenue laws, which have a double relation to commerce and to taxation. There are some other illustrations of this kind of regulation. A statute is in existence controlling the importation of adulterated drugs, and providing for the inspection of medicines brought from abroad. Another law forbids the importation of immoral books, pictures, and the like.

§ 384. (4.) Statutes relating to the liabilities of ship-owners and others engaged in commerce, either declaring, altering, or supplementing the rules of the Common Law, or general Law Merchant. Congress has assumed to enact laws of this description, and having this effect. In 1851 it passed a statute entitled, "An act to limit the liability of shipowners," etc. This act provides in substance, among other things, that no owners of vessels shall be liable for any damage to goods and merchandise caused by fire on board the vessel in which the commodities are laden, unless the fire were caused by the design or neglect of the owner himself. Provisions of the same law modify the liability resulting from collisions and other negligent or wrongful acts. Here Here is a plain and most material change in the rules of the common law; for, under that law, the common carrier is an insurer against all loss and damage, except that caused by the act God or of the public enemies.

The question whether this statute is valid, has never been directly presented to the Supreme Court; but it has been brought before that tribunal in such a way that their silence was as emphatic in favor of the validity as a positive and formal judgment. In Moore v. American Transportation Company, the defendants ran a vessel on Lake Erie, duly enrolled and licensed as a coaster. Moore sued them for the loss of 1 1 Black's R. 603. 2 24 Howard's R. 1.

goods on board the vessel by fire. The defence was based on this statute. At the Common Law the company would plainly have been liable. The statute contains a proviso that it is not to apply to the "internal navigation" of the country. The only question discussed and decided was, whether the navigation of the great lakes was inland navigation. The court held that it was not, and that the company was free from liability. Even Mr. Justice Daniel, who dissented, and who, as we have seen, was so eager to scent any invalidity in an act of Congress, and who would so much limit the powers of that body, placed his dissent entirely upon the ground that the great lakes do constitute a part of the "inland navigation of the country. As the unconstitutionality of the statute would have been a complete answer to the defence set up, and as neither Bar nor Bench suggested its invalidity, we may safely conclude that no tenable objection can be raised to it.

Alexander Hamilton maintained that, under this grant of power, Congress may pass uniform rules respecting marine insurances, foreign bills of exchange, bottomry bonds, etc., which he urged were inseparable concomitants and instruments of commerce. I can see no answer to his reasoning, if it be admitted that the national legislature may prescribe the liability of shipowners as common carriers. That a uniform system of rules governing these mercantile contracts would be a boon to those engaged in business, there can be no question.

SECTION IV.

THE POWER TO MAKE RULES FOR NATURALIZATION.

§ 385. Pursuing the order of the separate powers enumerated in Art. I. Sec. VIII., we are next to consider the following grant: "Congress shall have power establish an uniform rule of naturalization."

to

From the very outset of our present government, as a free, orderly, well-regulated Republic, avoiding both the iron rule of an unlimited monarchy, and the uncertainty and excesses

of an unrestrained democracy, it was foreseen that an extensive emigration from the Old World would in all probability take place; although the wildest hopes of its founders could not have anticipated a tithe of the actual steady and increasing flow of European producers to our shores, filling up our cities, and, in one generation, causing the vast West to be turned into an expanse of cultivated farm-land.

Prior to the Constitution, each state regulated the introduction and naturalization of aliens, according to its own notions of policy; there were no uniform rules; there being no national citizenship, there was no place for any power or capacity in the central government to admit persons to that

status.

§ 386. With the adoption of the Constitution all this was changed. We now have citizens of the United States; and it is proper that the legislature of the nation should prescribe the methods by which those who are not naturally so, so by birth, may be clothed with the qualities and capacities of citizenship. And, moreover, it is of the highest importance that these modes should be uniform, the same in all sections of the country; otherwise one state or region might obtain great and unfair advantages over another by inducements held out to foreigners in easier measures of naturalization and shorter times of probation.

Naturalization is, in fact, the conferring the status of citizenship upon those who do not acquire that status by their birth. According to the Common Law, all free persons, born within the limits of the country, are, with some unimportant exceptions, citizens. Immigrating to a country, and residing therein permanently, did not, at the Common Law, destroy the incapacities of alienage, and change a person from an alien into a citizen. Naturalization alone works this change; it makes a person "natural"; leaves him, when the transformation is wrought, as though he were a citizen by nature. It was for these reasons that the Constitution conferred upon Congress the authority to establish rules of naturalization, which must, however, be uniform.

§ 387. The first question to be considered is, whether this

power is absolutely exclusive in the United States, or whether it is enjoyed by the states concurrently. As was stated in Section III. of this chapter, there may be three alternatives, and these exhaust all possible cases. (1.) A power may be exclusively vested in Congress by the very terms of the grant, so that the states have no authority to pass laws touching the subject-matter, whether Congress has acted or not; or (2) the power may become exclusive by Congress acting thereunder; so that the states are forbidden to legislate after Congress has legislated; although, while the latter body continues silent, the states may respectively act; or (3) the power may be so concurrent that the states may exercise it, though the national legislature has also proceeded under the grant made to it in the Constitution.

It is plain that the power in question falls under the first of these alternatives; that it is exclusive in Congress; that states can pass no naturalization laws even if Congress should fail to exercise its function. The nature of the power points to this conclusion; it is national in its very essence; it is a matter with which the states can have no concern; United States citizenship is as much beyond their control as British or French citizenship.

§388. The decisions of the Supreme Court have established this doctrine; and the people, the political parties, the theorists, and the state legislatures have so far acquiesced, that no attempt has been made to alter or even question the construction. It is true that, soon after the adoption of the Constitution, the Supreme Court did not speak in so national a manner. In 1792 the case of Collet v. Collet was decided, which drew in question the citizenship of a person naturalized under a Pennsylvania statute passed before the adoption of the Constitution. The court in a hasty manner expressed an opinion that the power to naturalize was concurrent; but they overlooked the fact that this law was enacted during the Confederation. Subsequently (1797), in the case of United States v. Villate,2 the court decided this same Pennsylvania statute to be obsolete and void, and a person naturalized under 1 2 Dallas's R. 294. 2 Ibid. 370.

it not a citizen; but they did not consider the general question whether states might now pass such laws. In Chirac v. Chirac, it was finally and definitely held that the power to naturalize is exclusively in Congress.

§ 389. In the case of Houston v. Moore,2 Mr. Justice Story laid down general rules which are often quoted, but which, in fact, afford little aid in determining whether a particular legislative power be exclusive or concurrent. He says: "It is not to be admitted that a mere grant of powers in affirmative terms to Congress, does per se transfer an exclusive sovereignty on such subjects to the latter. On the contrary, a reasonable interpretation of that instrument necessarily leads to the conclusion that the powers so granted are never exclusive of similar powers existing in the states, unless (1) where the Constitution has expressly in terms given an exclusive power to Congress; or (2) where the exercise of a like power is prohibited to the states; or (3) where there is a direct repugnancy or incompatibility in the exercise of it by the states. The example of the first class is to be found in the exclusive legislation delegated to Congress over places purchased by the consent of the legislature of the state in which the same shall be, for forts, arsenals, dockyards, etc.; of the second class, the prohibition of a state to coin money, or emit bills of credit; of the third class, as this court has already held, the power to establish an uniform rule of naturalization, and the delegation of admiralty and maritime jurisdiction." In the great case of Ogden v. Saunders, Mr. Justice Johnson remarks: "Our foreign intercourse being exclusively committed to the general government, it is peculiarly their province to determine who are entitled to the privileges of American citizens and the protection of the American Government."

$390. While it is settled, then, upon principle, authority, and continuous practice, that the Congress of the United States has exclusive authority to make rules for naturalization, it must not be understood that the states are deprived of all jurisdiction to legislate respecting the rights and duties of aliens. They may permit or forbid persons of alien birth to

1 2 Wheaton's R. 259.

2 5 Ibid. 49.

3 12 Ibid. 277.