360 BURR— THE TREATY-MAKING POWER [April 20, 



Said Mr. Justice Daniel: 



"Laws of the United States in order to be binding, must be within the 

 legitimate powers vested by the Constitution. Treaties, to be vaHd, must be 

 made within the scope of the same powers ; for there can be no ' authority 

 of the United States,' save what is derived mediately or immediately and 

 regularly and legitimately from the Constitution. A treaty, no more than 

 an ordinary statute, can arbitrarily cede away any one right of a State or of 

 any citizen of a State.""^" 



]\Ir. Justice Grier repeated the quotation from New York 2's. Miln, 

 already given above,-'*' and concluded : 



"If the right to control these subjects be 'complete, unqualified, and 

 exclusive ' in the State legislatures, no regulations of secondary importance 

 can supersede or restrain their operations, on any ground or prerogative or 

 supremacy. The exigencies of the social compact require that such laws be 

 executed before and above all others.""^ 



Two years later, in the so-called Passenger Cases, ^*^ there were 

 declared unconstitutional, statutes of New York and Massachusetts 

 attempting inter alia to levy a tax on every alien coming into the 

 state, although the proceeds of that tax were declared to be 

 for the purpose of creating a fund for charitable purposes con- 

 nected with immigration. Four judges dissented. From their 

 opinions additional expressions of the inviolability of the State police 

 power may be gathered. Said Mr. Chief Justice Taney : 



" The first inquiry is, whether under the Constitution of the United 

 States, the Federal government has the power to compel the several States 

 to receive and suffer to remain in association with its citizens, every person 

 or class of persons whom it may be the policy or pleasure of the United 

 States to admit. ... If the people of the several States of this Union 

 reserved to themselves the power of expelling from their borders any person, 

 or class of persons, whom it might deem dangerous to its peace, or likely to 

 produce a physical or moral evil among its citizens, then any treaty or law 

 of Congress invading this right and authorizing the introduction of any 

 person for description of persons against the consent of the State would be 

 an usurpation of power which this Court could neither recognize nor 

 enforce. 



" I had supposed this question not now open to dispute. ""^'' 



■24'> 

 247 

 24s 



Ibid., pp. 612-3. '*"; How., 283 (1849). 



Supra, p. 169. '"'Ibid., pp. 465-6. 



5 How., p. 632. 



