112 U.S.

580
5 S.Ct. 247
28 L.Ed. 798

EDYE and another

v.
ROBERTSON, Collector, etc.1 [In Error to the Circuit
Court of the United States for the Eastern
District of New York.]
CUNARD STEAM-SHIP CO. (Limited)
v.
ROBERTSON, Collector, etc. 2
SAME
v.
SAME.
[In Error to the Circuit Court of the United States for the Southern District
of New York.]
December 8, 1884.
[Syllabus and statement of facts from pages 580-582 intentionally omitted]
Geo. De Forest Lord, for Cunard Steam-ship Co.
[Argument of Counsel from pages 582-584 intentionally omitted]
Philip J. Joachimsen and Edwards Pierrepont, for Edye and others.
[Argument of Counsel from pages 584-586 intentionally omitted]
Sol. Gen. Phillips, for Robertson, Collector, etc.
MILLER, J.

These cases all involve the same questions of law, and have been argued before
this court together. The case at the head of the list presents all the facts in the
form of an agreed statement signed by counsel, and it therefore brings the
questions before us very fully. The other two were decided by the circuit court
on demurrer to the declaration. They will be disposed of here in one opinion,
which will have reference to the case as made by the record in Edye et al. v.
Robertson. The suit is brought to recover from Robertson the sum of money
received by him, as collector of the port of New York, from plaintiffs, on
account of their landing in that port passengers from foreign ports, not citizens
of the United States, at the rate of 50 cents for each of such passengers, under
the act of congress of August 3, 1882, entitled 'An act to regulate immigration.'
The petition of plaintiffs and the agreed facts, which are also made the finding
of the court to which the case was submitted without a jury, are the same with
regard to each of many arrivals of vessels of the plaintiffs, except as to the
name of the vessel and the number and age of the passengers. The statement as
to the arrival first named, which is here given, will be sufficient for them all,
for the purposes of this opinion.

The following are admitted to be the facts in this action: '(1) That the plaintiffs
are partners in trade in the city of New York under the firm name of Funch,
Edye & Co., and carry on the business of transporting passengers and freight
upon the high seas between Holland and the United States of America as
consignees and agents. That on the second day of October, 1882, there arrived,
consigned to the plaintiffs, the Dutch ship Leerdam, owned by certain citizens
or subjects of the kingdom of Holland, and belonging to the nationality of
Holland, at the port of New York. She had sailed from the foreign port of
Rotterdam, in Holland, bound to New York, and carried 382 persons not
citizens of the United States. That among said 382 persons 20 were severally
under the age of one year and 59 were severally between the ages of one year
and eight years. That upon the arrival of said steam-ship Leerdam within the
collection district of New York, the master thereof gave, in pursuance to section
9 of the passenger act of 1882, and delivered to the custom-house officer, who
first came on board the vessel and made demand therefor, a correct list, signed
by the master, of all the passengers taken on board of said Leerdam at said
Rotterdam, specifying separately the names of the cabin passengers, their age,
sex, calling, and the country of which they are citizens, and also the name, age,
sex, calling, and native country of each emigrant passenger or passengers other
than cabin passengers, and their intended destination or location, and in all
other respects complying with said ninth section, and a duplicate of the
aforesaid list of passengers, verified by the oath of the master, was, with the
manifest of the cargo, delivered by the master to the defendant as collector of

customs of the port of New York on the entry of said vessel. That it appears
from the said list of passengers and duplicate that the said 382 persons were
each and every one subjects of Holland or other foreign powers in treaty of
peace, amity, and commerce with the United States. That the said passenger
manifest also states the total number of passengers, and shows that 20 of them
were under one year of age, and 59 between the ages of one year and eight
years. That said collector, before allowing complete entry of said vessel, as
collector decided, on the twelfth day of October, 1882, that the plaintiffs must
pay a duty of one hundred and ninety-one dollars for said passengers, being
fifty cents for each of said 382 passengers. That by the regulations of the
treasury department the non-payment of said 191 dollars would have permitted
the defendant to refuse the complete entry of the vessel, or to refuse to give her
a clearance from the port of New York to her home port, and such imposition
would have created an apparent lien on said vessel for said sum of 191 dollars.
On the defendants making such demand the plaintiffs paid the same and
protested against the payment thereof. That a copy of the protest in regard to
said Leerdam is annexed to the complaint, marked 'No. 1,' and is a correct copy
of the protest. That on the same day the plaintiffs duly appealed to the secretary
of treasury from such decision of the collector, and that the paper marked
'Appeal No. 2,' annexed to the complaint, is a copy of said appeal. On the
eighteenth October, 1882, the secretary of the treasury sustained the action of
the defendant, and this action is brought within ninety days after the rendering
of such decision. That the payment set forth in the complaint herein was levied
and collected by defendant, and the same was paid under and in pursuance of
an act of congress entitled 'An act to regulate emigration,' approved August 3,
1882.' On the facts as thus agreed and as found by the circuit court, a judgment
was rendered in favor of defendant, which we are called upon to review. There
is no complaint by plaintiffs that the defendant violated this act in any respect
but one, namely, that it did not authorize him to demand anything for the 20
children under one year old, and for the 59 who were between the ages of one
year and eight years. The supposed exception of this class of passengers does
not arise out of any language found in this act to regulate immigration, nor any
policy on which it is founded, but it is based by counsel on a provision of an act
approved one day earlier than this, entitled 'An act to regulate the carriage of
passengers by sea.' This provision limits the number of passengers which the
vessel may carry by the number of cubic feet of space in which they are to be
carried, and it declares that, in making this calculation, children of the ages
mentioned need not be counted. In reference to the space they will occupy this
principle is reasonable. But, as regards the purpose of the immigration act to
raise a fund for the sick, the poor, and the helpless immigrant, children are as
likely to require its aid as adults, probably more so. They are certainly within
the definition of the word 'passenger,' when otherwise within the purview of the
act. This branch of the case requires no further consideration.

The other errors assigned, however numerous or in whatever language

presented, all rest on the proposition that the act of congress requiring the
collector to demand and receive from the master, owner, or consignee of each
vessel arriving from a foreign port, 50 cents for every passenger whom he
brings into a port of the United States who is not a citizen, is without warrant in
the constitution and is void. The substance of the act is found in its first section,
namely:

'AN ACT TO REGULATE IMMIGRATION.

'Be it enacted by the Senate and House of Representatives of the United States
of America in Congress assembled, that there shall be levied, collected, and
paid a duty of fifty cents for each and every passenger, not a citizen of the
United States, who shall come by steam or sail vessel from a foreign port to any
port within the United States. The said duty shall be paid to the collector of
customs of the port to which such passenger shall come, or if there be no
collector at such port, then to the collector of customs nearest thereto, by the
master, owner, agent, or consignee of every such vessel, within twenty-four
hours after the entry thereof into such port. The money thus collected shall be
paid into the United States treasury, and shall constitute a fund to be called the
immigrant fund, and shall be used, under the direction of the secretary of the
treasury, to defray the expenses of regulating immigration under this act, and
for the care of immigrants arriving in the United States, for the relief of such as
are in distress, and for the general purposes and expenses of carrying this act
into effect.'

The act further authorizes the secretary to use the aid of any state organization
or officer for carrying into effect the beneficent objects of this law, by
distributing the fund in accordance with the purpose for which it was raised, not
exceeding in any port the sum received from it, under rules and regulations to
be prescribed by him. It directs that such officers shall go on board vessels
arriving from abroad, and if, on examination, they shall find any convict,
lunatic, idiot, or any person unable to take care of himself or herself, without
becoming a public charge, they shall report to the collector, and such person
shall not be permitted to land. It is also enacted that convicts, except for
political offenses, shall be returned to the nations to which they belong. And the
secretary is directed to prepare rules for the protection of the immigrant who
needs it, and for the return of those who are not permitted to land. This act of
congress is similar, in its essential features, to many statutes enacted by states
of the Union for the protection of their own citizens, and for the good of the
immigrants who land at sea-ports within their borders. That the purpose of
these statutes is humane, is highly beneficial to the poor and helpless

immigrant, and is essential to the protection of the people in whose midst they
are deposited by the steam-ships, is beyond dispute. That the power to pass
such laws should exist in some legislative body in this country is equally clear.
This court has decided distinctly and frequently, and always after a full hearing
from able counsel, that it does not belong to the states. That decision did not
rest in any case on the ground that the state and its people were not deeply
interested in the existence and enforcement of such laws, and were not capable
of enforcing them if they had the power to enact them, but on the ground that
the constitution, in the division of powers which it declares between the states
and the general government, has conferred this power on the latter to the
exclusion of the former. We are now asked to decide that it does not exist in
congress, which is to hold that it does not exist at all; that the framers of the
constitution have so worded that remarkable instrument that the ships of all
nations, including our own, can, without restraint or regulation, deposit here, if
they find it to their interest to do so, the entire European population of
criminals, paupers, and diseased persons, without making any provision to
preserve them from sharvation, and its concomitant sufferings, even for the first
few days after they have left the vessel. This court is not only asked to decide
this, but is asked to overrule its decision, several times made with unanimity,
that the power does reside in congress, is conferred upon that body by the
express language of the constitution, and the attention of congress called to the
duty which arises from that language to pass the very law which is here in
question. That these statutes are regulations of commerce,of commerce with
foreign nations,is conceded in the argument in this case, and that they
constitute a regulation of that class which belongs exclusively to congress is
held in all the cases in this court. It is upon these propositions that the court has
decided in all these cases that the state laws are void. Let us examine those
decisions for a moment.
7

In The Passenger Cases, so called, the report of which occupies the pages of 7
Howard from page 283 to 573, mostly with opinions of the judges, the order of
the court is that 'it is the opinion of the court that the statute of New York, by
which the health commissioner of the city of New York is declared entitled to
demand and receive from the master of every vessel from a foreign port that
shall arrive in the port of that city the sum of one dollar for each steerage
passenger brought in such vessel, is repugnant to the constitution and laws of
the United States, and therefore void.' An examination of the opinions of the
judges shows that if the majority agreed upon any one reason for this order, it
was because the law was a regulation of commerce, the power over which that
constitution had placed exclusively in congress. The same examination will
show that several judges denied this, because they held that this power
belonged to the class which the states might exercise until it was assumed by

congress. It is very clear that if any such act of congress had existed then as the
one now before us, the decision of the court would have been nearer to
unanimity.
8

In the case of Henderson v. Mayor of New York, 92 U. S. 259, the whole

subject is reviewed, and, in the light of the division in this court in The
Passenger Cases, it is considered, on principle, as if for the first time. In that
case, after the statute of New York had been modified in such a manner as was
supposed to remove the objections held good against it in The Passenger
Cases, the question of its constitutional validity was again brought before this
court, when it was held void by the unanimous judgment of all its members.
And this was upon the distinct ground that it was a regulation of commerce
solely within the power of congress. 'As already indicated,' says the court, 'the
provision of the constitution of the United States, on which the principal
reliance is placed, is that which gives to congress the right 'to regulate
commerce with foreign nations." The court then, referring to the transportation
of passengers from European ports to those of the United States, says: 'It has
become a part of our commerce with foreign nations, of vast interest to this
country as well as to the immigrants who come among us, to find a welcome
and a home within our borders.' 'Is the regulation of this great system a
regulation of commerce? Can it be doubted that a law which prescribes the
terms on which vessels shall engage in it is a law regulating this branch of
commerce?' The court adds: 'We are of opinion that this whole subject has been
confided to congress by the constitution; that congress can more appropriately
and with more acceptance exercise it than any other body known to our law,
state or national; that by providing a system of laws in these matters, applicable
to all ports and to all vessels, a serious question which has long been matter of
contest and complaint may be effectually and satisfactorily settled.' And for this
reason the statute of New York was held void.

In the case of Commissioners of Immigration v. North German Lloyd, 92 U. S.

259, a similar statute of Louisiana was held void for the same reason. And in
the case of Chy Lung v. Freeman, decided at the same term,92 U. S. 275, the
statute of California, on the same subject, was also held void, because, in the
language of the head-note to the report, 'it invades the right of congress to
regulate commerce with foreign nations.'

10

In the case of People v. Compagnie Generale Transatlantique, 107 U. S. 59, S.

C. 2 SUP. CT. REP. 87, where the state of New York, having again modified
her statute, it was again held void, the court said: 'It has been so repeatedly
decided by this court that such a tax is a regulation of commerce with foreign
nations, confided by the constitution to the exclusive control of congress,'

(referring to the cases just cited,) 'that there is little to say beyond affirming the
judgment of the circuit court, which was based on those decisions.'
11

It cannot be said that these cases do not govern the present, though there was
not then before us any act of congress whose validity was in question, for the
decisions rest upon the ground that the state statutes were void only because
congress, and not the states, was authorized by the constitution to pass them,
and for the reason that congress could enact such laws, and for that reason
alone, were the acts of the state held void. It was, therefore, of the essence of
the decision which held the state statutes invalid, that a similar statute by
congress would be valid. We are not disposed to reconsider those cases, or to
resort to other reasons for holding that they were well decided. Nor do we feel
that further argument in support of them is needed. But counsel for plaintiffs,
assuming that congress, in the enactment of this law, is exercising the taxing
power conferred by the first clause of section 8, art. 1, Const., and can derive no
aid in support of its action from any other grant of power in that instrument,
argues that all the restraints and qualifications found there in regard to any form
of taxation are limitations upon the exercise of the power in this case. The
clause is in the following language: 'The congress shall have power to lay and
collect taxes, duties, imposts, and excises, to pay the debts and provide for the
common defense and the general welfare of the United States; but all duties,
imposts, and excises shall be uniform throughout the United States.'

12

In this view it is objected that the tax is not levied to provide for the common
defense and general welfare of the United States, and that it is not uniform
throughout the United States. The uniformity here prescribed has reference to
the various localities in which the tax is intended to operate. 'It shall be uniform
throughout the United States.' Is the tax on tobacco void because in many of
the state no tobacco is raised or manufactured? Is the tax on distilled spirits
void because a few states pay three-fourths of the revenue arising from it? The
tax is uniform when it operates with the same force and effect in every place
where the subject of it is found. The tax in this case, which, as far as it can be
called a tax, is an excise duty on the business of bringing passengers from
foreign countries into this by ocean navigation, is uniform and operates
precisely alike in every port of the United States where such passengers can be
landed. It is said that the statute violates the rule of uniformity and the
provision of the constitution that 'no preference shall be given by any regulation
of commerce or revenue to the ports of one state over those of another,' because
it does not apply to passengers arriving in this country by railroad or other
inland mode of conveyance. But the law applies to all ports alike, and evidently
gives no preference to one over another, but is uniform in its operation in all
ports of the United States. It may be added that the evil to be remedied by this

legislation has no existence on our inland borders, and immigration in that

quarter needed no such regulation. Perfect uniformity and perfect equality of
taxation, in all the aspects in which the human mind can view it, is a baseless
dream, as this court has said more than once. State Railroad Tax Cases, 92 U.
S. 612. Here there is substantial uniformity within the meaning and purpose of
the constitution.
13

If it were necessary to prove that the imposition of this contribution on owners

of ships is made for the general welfare of the United States, it would not be
difficult to show that it is so, and particularly that it is among the means which
congress may deem necessary and proper for that purpose, and beyond this we
are not permitted to inquire. But the true answer to all these objections is that
the power exercised in this instance is not the taxing power. The burden
imposed on the ship-owner by this statute is the mere incident of the regulation
of commerceof that branch of foreign commerce which is involved in
immigration. The title of the act, 'An act to regulate immigration,' is well
chosen. It describes, as well as any short sentence can describe it, the real
purpose and effect of the statute. Its provisions, from beginning to end, relate to
the subject of immigration, and they are aptly designed to mitigate the evils
inherent in the business of bringing foreigners to this country, as those evils
affect both the immigrant and the people among whom he is suddenly brought
and left to his own resources.

14

It is true, not much is said about protecting the ship-owner. But he is the man
who reaps the profit from the transaction, who has the means to protect
himself, and knows well how to do it, and whose obligations in the premises
need the aid of the statute for their enforcement. The sum demanded of him is
not, therefore, strictly speaking, a tax or duty within the meaning of the
constitution. The money thus raised, though paid into the treasury, is
appropriated in advance to the uses of the statute, and does not go to the general
support of the government. It constitutes a fund raised from those who are
engaged in the transportation of these passengers, and who make profit out of
it, for the temporary care of the passengers whom they bring among us, and for
the protection of the citizens among whom they are landed. It this is an
expedient regulation of commerce by congress, and the end to be attained is
one falling within that power, the act is not void because, within a loose and
more extended sense than was used in the constitution, it is called a tax. In the
case of Veazie Bank v. Fenno, 8 Wall. 549, the enormous tax of 8 per cent. per
annum on the circulation of state banks, which was designed, and did have the
effect, to drive all such circulation out of existence, was upheld because it was a
means properly adopted by congress to protect the currency which it had
created; namely, the legal-tender notes and the notes of the national banks. It

was not subject, therefore, to the rules which would invalidate an ordinary tax
pure and simple. So, also, in the case of Packet Co. v. Keokuk, 95 U. S. 80, the
city of Keokuk having by ordinance imposed a wharfage fee or tax, for the use
of a wharf owned by the city, the amount of which was regulated by the
tonnage of the vessel, this was held not to be a tonnage tax within the meaning
of the constitutional provision that 'no state shall, without the consent of
congress, lay any duty of tonnage.' The reason of this is that, though it was a
burden or tax in some sense, and measured by the tonnage of the vessel, it was
but a charge for services rendered, or for conveniences furnished by the city,
and was not a tonnage tax within the meaning of the constitution. This principle
was reaffirmed in the case of Same Plaintiff v. City of St. Louis, 100 U. S. 423.
15

We are clearly of opinion that, in the exercise of its power to regulate

immigration, and in the very act of exercising that power, it was competent for
congress to impose this contribution on the ship-owner engaged in that
business. Another objection to the validity of this act of congress is that it
violates provisions contained in numerous treaties of our government with
friendly nations. And several of the articles of these treaties are annexed to the
careful brief of counsel. We are not satisfied that this act of congress violates
any of these treaties, on any just construction of them. Though laws similar to
this have long been enforced by the state of New York in the great metropolis
of foreign trade, where four-fifths of these passengers have been landed, no
complaint has been made by any foreign nation to ours of the violation of treaty
obligations by the enforcement of those laws. But we do not place the defense
of the act of congress against this objection upon that suggestion. We are of
opinion that, so far as the provisions in that act may be found to be in conflict
with any treaty with a foreign nation, they must prevail in all the judicial courts
of this country. We had supposed that the question here raised was set at rest in
this court by the decision in the case of The Cherokee Tobacco, 11 Wall. 616. It
is true, as suggested by counsel, that three judges of the court did not sit in the
case, and two others dissented. But six judges took part in the decision, and the
two who dissented placed that dissent upon the ground that congress did not
intend that the tax on tobacco should extend to the Cherokee tribe. They
referred to the existence of the treaty which would be violated if the statute was
so construed as persuasive against such a construction, but they nowhere
intimated that, if the statute was correctly construed by the court, it was void
because it conflicted with the treaty, which they would have done if they had
held that view. On the point now in controversy it was therefore the opinion of
all the judges who heard the case. See U. S. v. McBratney, 104 U. S. 621-623.

16

The precise question involved here, namely, a supposed conflict between an act
of congress imposing a customs duty, and a treaty with Russia on that subject,

in force when the act was passed, came before the circuit court for the district
of Massachusetts in 1855. It received the consideration of that eminent jurist,
Mr. Justice CURTIS, of this court, who in a very learned opinion exhausted the
sources of argument on the subject, holding that if there were such conflict the
act of congress must prevail in a judicial forum. Taylor v. Morton, 2 Curt. C. C.
454. And Mr. Justice FIELD, in a very recent case in the Ninth circuit, that of
In re Ah Lung, on a writ of habeas corpus, has delivered an opinion sustaining
the same doctrine in reference to a statute regulating the immigration of
Chinamen into this country. 18 Fed. Rep. 28. In the Clinton Bridge Case,
Woolw. 156, the writer of this opinion expressed the same views as did Judge
WOODRUFF, on full consideration, in Ropes v. Clinch, 8 Blatchf. 304, and
Judge WALLACE, in the same circuit, in Bartram v. Robertson, 15 Fed. Rep.
212.
17

It is very difficult to understand how any different doctrine can be sustained. A

treaty is primarily a compact between independent nations. It depends for the
enforcement of its provisions on the interest and the honor of the governments
which are parties to it. If these fail, its infraction becomes the subject of
international negotiations and reclamations, so far as the injured party chooses
to seek redress, which may in the end be enforced by actual war. It is obvious
that with all this the judicial courts have nothing to do and can give no redress.
But a treaty may also contain provisions which confer certain rights upon the
citizens or subjects of one of the nations residing in the territorial limits of the
other, which partake of the nature of municipal law, and which are capable of
enforcement as between private parties in the courts of the country. An
illustration of this character is found in treaties, which regulate the mutual rights
of citizens and subjects of the contracting nations in regard to rights of property
by descent or inheritance, when the individuals concerned are aliens. The
constitution of the United States places such provisions as these in the same
category as other laws of congress by its declaration that 'this constitution and
the laws made in pursuance thereof, and all treaties made or which shall be
made under authority of the United States, shall be the supreme law of the
land.' A treaty, then, is a law of the land as an act of congress is, whenever its
provisions prescribe a rule by which the rights of the private citizen or subject
may be determined. And when such rights are of a nature to be enforced in a
court of justice, that court resorts to the treaty for a rule of decision for the case
before it as it would to a statute. But even in this aspect of the case there is
nothing in this law which makes it irrepealable or unchangeable. The
constitution gives it no superiority over an act of congress in this respect, which
may be repealed or modified by an act of a later date. Nor is there anything in
its essential character, or in the branches of the government by which the treaty
is made, which gives it this superior sanctity. A treaty is made by the president

and the senate. Statutes are made by the president, the senate, and the house of
representatives. The addition of the latter body to the other two in making a law
certainly does not render it less entitled to respect in the matter of its repeal or
modification than a treaty made by the other two. If there be any difference in
this regard, it would seem to be in favor of an act in which all three of the
bodies participate. And such is, in fact, the case in a declaration of war, which
must be made by congress, and which, when made, usually suspends or
destroys existing treaties between the nations thus at war. In short, we are of
opinion that, so far as a treaty made by the United States with any foreign
nation can become the subject of judicial cognizance in the courts of this
country, it is subject to such acts as congress may pass for its enforcement,
modification, or repeal.
18

Other objections are made to this statute. Some of these relate, not to the power
of congress to pass the act, but to the measure, of which congress, and not the
courts, measure, f which congress, and not the courts, are the sole judgessuch
as its unequal operation on persons not paupers or criminals, and its effect in
compelling the ultimate payment of the sum demanded for each passenger by
that passenger himself. Also, that the money is to be drawn from the treasury
without an appropriation by congress. The act itself makes the appropriation,
and even if this be not warranted by the constitution, it does not make void the
demand for contribution, which may yet be appropriated by congress, if that be
necessary, by another statute. It is enough to say that, congress having the
power to pass a law regulating immigration as a part of the commerce of this
country with foreign nations, we see nothing in the statute by which it has here
exercised that power forbidden by any other part of the constitution. The
judgment of the circuit court in all the cases is affirmed.

S. C. 18 Fed. Rep. 135.

S. C. 18 Fed. Rep. 147.