The Passenger Cases and the Commerce Clause

Immigrants, Blacks, and States' Rights in Antebellum America

Tony Allan Freyer

• Publisher: University Press of Kansas
• Year: 2015
• ISBN:
  9780700620524
• Topic: Law
• Subtopic: Commercial Law
• Index: Law

In 1849 Chief Justice Taney's Court delivered a 5-4 decision on the legal status of immigrants and free blacks under the federal commerce power. The closely divided decision, further emphasized by the fact there were eight opinions, played a part in the increasingly contested politics over growing immigration, and the controversies about fugitive slaves and the western expansion of slavery that resulted in the Compromise of 1850. In the decades after the Civil War federal regulation of immigration almost entirely displaced the role of the states. Yet, over a century later, Justice Scalia in Arizona v. US appealed to the era when states exercised greater control over who they allowed to cross their borders; a dissent which has returned the Passenger Cases to the contemporary relevance. The Passenger Cases provide a counter-history that allowed the Court to affirm federal supremacy and state-federal cooperation in Arizona I (2011) and II (2012). In The Passenger Cases and the Commerce Clause Tony Allan Freyer focuses on the antebellum Supreme Court's role prescribing state-federal regulation of immigrants, the movement of free blacks within the United States and on the origins, state court decisions, federal precedents, appellate arguments, and opinion-making that culminated in the Court's decision of the Passenger Cases. The Court's split decision provided political legitimacy for the 1850 Compromise: enactment of a stronger fugitive slave law, admission of slavery in western territories based on popular vote of residents (popular sovereignty), and the abolition of the slave trade in Washington D.C. The divided opinions in the Passenger Cases also influenced the immigrant and slavery crises which disrupted the balance between free and slave-labor states, culminating in the Civil War. The states did indeed enact laws enabling exclusion of undesirable white immigrants and free blacks. The 5-4 division of the Court anticipated the better known, but even more divisive, views of the Justices in the Dred Scott case (1857). And in considering the post-Reconstruction evolution of new standards by which to judge immigration issues, the Passenger Cases revealed the continuing controversy over how to treat those who wish to come to our country, even as federal law came to dominate the regulation of immigration. These issues continued to complicate immigration law as much today as they did more than a century and a half ago. The persistence of these problems suggested that a "decent respect to the opinions of mankind" continued to demand a coherent, humane, and more consistent immigration policy.

chapter 1

Origins and Precedents in Law and
Politics, 1819–1837

Between the 1819 U.S. Passenger Act and the 1837 Panic the states developed primary control over admitting or excluding foreign immigrants. From victory in the American Revolution to the Napoleonic Wars, shippers and agents financed relatively modest numbers of immigrants making the transatlantic passage by requiring labor contracts traded like property in Southern slaves. During the 1819 Panic Congress passed the U.S. Passenger Act, which attempted to regulate spatial conditions immigrants encountered aboard vessels. Although poorly enforced, the federal law instituted regulations governing immigrant ships that included data collection showing steady increases in the immigrants arriving annually into U.S. ports. In New York City, the nation’s leading port, the number of foreign immigrants grew from 13,000 in 1830 to 58,000 in 1836. Since federal regulation ended with immigrants’ disembarkation from aboard ship, state and local governments evolved complex police powers that facilitated admission of immigrants. These police-power regulations drew immigrants into local, state, and national party politics embracing free blacks and Southern slavery. Gradually, the state and federal judicial process led by the Supreme Court reshaped political struggles into legal and constitutional issues contesting the point where federal commerce power regulation over foreign immigrants ended and state police power regulations began.

The following narrative recognizes that state police powers in principle certainly permitted exclusion of undesirable immigrants. The evidence nonetheless supports the thesis that from 1819 to 1837 factors driving immigration from Britain and Europe to the U.S., combined with the data collected under the U.S. and New York Passenger Acts, enmeshed the immigrant trade in local and state politics. The state and federal judicial process reconstituted political struggles into legal issues that reached the Supreme Court, ultimately contesting the status of immigrants and free blacks as legal “persons,” the resolution of which facilitated the immigrants’ admission more than exclusion. The first section presents the law and politics constituting the shift in the immigrant trade from labor contracts to free-trade competition that coincided with Marshall Court interpretations of the Constitution’s commerce power in Article 1, Sections 8–10. The second section focuses on New York City’s police powers and extralegal politics governing legal “persons” under the state’s alien tax and the 1824 Passenger Act; the third section presents the same political and legal context for the 1837 alien tax within the Massachusetts poor law. The fourth section examines Chief Justice Marshall’s success in deciding Gibbons v. Ogden and two other commerce power precedents by avoiding the legal status of “persons,” until his delayed decision of New York City v. Miln left the outcome to a reconstituted Supreme Court led by Chief Justice Taney.

The U.S. Passenger Act and the Law and
Politics of the Transatlantic Immigrant Trade,
1819–1837

Before the 1819 U.S. Passenger Act, emigration from Europe to America gradually increased and payment for passage relied primarily on labor contracts. In 1818 Pennsylvania congressman Adam Seybert published statistics indicating that the annual number of foreign immigrants arriving in the United States averaged about 4,000 from 1784 to 1794; in 1810 the estimated annual average had risen to 6,000. As a result of agricultural blights in Europe and Britain the number of immigrants arriving in the United States reached an estimated 10,000 in 1817. New York immigrant commissioner Friedrich Kapp later described labor contracts used to pay for the transatlantic passage by 1818. The “great majority of immigrants” were “so poor that they could not pay their passage, and in order to meet the obligations incurred . . . for passage-money and other advances, they were sold, after their arrival, into temporary servitude.” Thus, “prepayment of the passage was the exception,” and the “subsequent discharge by compulsory labor the rule. The ship owners and ship merchants derived enormous profits from the sale of the bodies of emigrants, as they charged very high rates for the passage, to which they added a heavy percentage—often more than a hundred per cent—for their risks. But the emigrants suffered bitterly from this traffic in human flesh.” The U.S. Passenger Act reflected national and local politics, including the Supreme Court that encouraged states to admit rather than exclude growing numbers of immigrants by the 1837 Panic.

Kapp ascribed passage of the 1819 U.S. Passenger Act to Southerners who resisted the sale of white immigrants’ labor contracts. A Delaware congressman condemned a broker who sold Germans’ labor contracts in the slave state in 1817. Delaware and Virginia slaveholder congressmen then introduced into the U.S. House legislation that regulated the space allocated poorer steerage-class passengers aboard vessels plying the transatlantic immigrant trade. In 1819 an immigrant labor broker unsuccessfully petitioned the U.S. Senate for assistance in recovering Germans who absconded from labor contracts resold in Tennessee and Alabama after Ohio courts had refused to enforce the exploitation of white workers. In the four Southern states slaveholders condemned the sale of white labor contracts as approximating too closely the interstate slave trade that troubled Congress as it struggled to separate Western slave and free-labor territories during the years preceding the 1820 Missouri Compromise. Also prior to the Missouri Compromise, Virginia congressional representatives briefly supported transporting free blacks to Liberia at public expense. Free blacks, however, would not subject themselves voluntarily to the deplorable conditions aboard vessels offered steerage-class whites. Accordingly, once a Virginia representative called for a final House vote, the Passenger Act passed both houses of Congress and received President James Monroe’s signature in 1819.

The 1819 Passenger Act proved difficult to enforce. Congress, said Kapp, “fixed the space allotted to the emigrants to five tons, Custom House measurement, for every two passengers, and in case of contravention punished the captain with a fine of $150 for each passenger.” The law also “declared the ship to be forfeited to the United States, if the number of passengers carried exceeded the said portion of two to every five tons. It further specified the amount of water and provisions to be taken aboard by emigrant vessels, and exacted a fine of three dollars for every day that any passenger was put on short allowance.” The tonnage and “customs measurement” nonetheless applied standards borrowed from the transport of material goods to people designated as “legal persons” requiring reasonable living conditions. The shippers manipulated the spatial criteria for immigrants by averaging together cabin and steerage specifications, even though disproportionate numbers—including families—occupied the steerage class. In addition, the food “provision” ignored the grim reality that very few vessels had cooking facilities sufficient for the large numbers of steerage-class immigrants. Moreover, the tonnage and customs measurements did not recognize that steerage-class passengers could afford limited food “provisions,” which often were inadequate over the weeks and months sailing vessels required to make the transatlantic crossing.

Although Kapp reported that the sale of white immigrant contract labor ended in the United States by 1819, shippers and agents crowded immigrants aboard vessels despite the U.S. Passenger Act. Like other critics in the United States and Britain, Kapp condemned the ship owners who “chartered the lower decks of their vessels to agents, for the payment of a certain sum for each ton of the whole space disposed of. The agents made the needful temporary arrangements for the accommodation of the passengers, and underlet the steerage, either to associations of emigrants, or parcelled [sic] it out to sub-agents or to single passengers.” Aside from “assigning a space, however small, to the emigrants,” agents “had no responsibility, and ran no risk whatever.” Aboard vessels, individual and family steerage passengers “had no other right than to occupy the ten or twelve square feet which were allotted to them.” These crowded conditions in conjunction with the limited provision for water, food, and the means for their preparation bred disease. Yet the “agents, in order to make the business lucrative, sent on board as many passengers as they could get hold of, without the smallest reference [to] the convenience of the steerage, the number of the births, the separation of the sexes, or anything except their own immediate profit.”

The 1819 federal Passenger Act included one regulation, however, that was enforced. The law required federal customs collectors in all U.S. ports to make quarterly reports to the secretary of state giving the “number of passengers arriving in their collection districts, by sea, from foreign countries; also the sex, age, and occupation of such passengers, and the country in which they were born.” This statistical data thus established the numbers and national origins of the immigrants arriving in U.S. ports. From 1826 to 1830, for example, the annual totals of those entering the United States were 10,837; 18,875; 27,283; 22,530; and 23,322. Over these same years shifting proportions of immigrants came from the British Isles, including England, Scotland, Wales, and Ireland, with 7,709 in 1826; 11,952 in 1827; 17,840 in 1828; 10,594 in 1829; and 3,874 in 1830. Kapp, suggesting similar humanitarian evidence reported in Parliamentary Papers, explained that the “fluctuations were due to the great commercial panic of 1826, and the distress in the manufacturing districts of England, as well as” another “famine in Ireland, which drove thousands from their homes, who, under ordinary circumstances, would never have thought of emigration.” Political struggles, by contrast, brought numbers of German immigrants that periodically exceeded that of British immigration with annual totals from 1834 to 1837 of 17,654; 8,245; 20,139; and 23,036.

Limited regulation favoring agents’ and shippers’ profits, combined with increasing numbers of immigrants, encouraged ineffective policing of the immigrant trade in ports. Agents and shippers rebuffed criticisms of harmful conditions on vessels, declaring that immigrants often came aboard already in poor health as a result of sharp practices perpetrated in Liverpool and other British ports. Even so, from the 1820s on reformers and philanthropists repeatedly petitioned Parliament, urging increased policing and regulation targeting notorious operations of private “hotels,” “hospitals,” and “runners.” These enterprises took advantage of an immigrant’s weakened physical condition caused by famine as she or he waited for days or weeks to board ship. Parliament’s gradual funding of more policing and official oversight did not match the scale of harmful conduct. Reliance upon episodic litigation for enforcement had little deterrent effect. Moreover, the British consul in New York witnessed the deplorable condition of immigrants arriving from Liverpool in vessels that had not complied with the 1819 U.S. Passenger Act. He recommended that Parliament adopt standards that more nearly approximated those in the U.S. law. Parliament’s 1835 act, however, simply compromised low standards the London Ship Owners Society proposed with those from the U.S. Passenger Act, which made for ineffective legislation.

Disease resulting from crowded conditions aboard vessels directly affected American states’ police powers. The most common shipboard diseases resulting from noncompliance with spatial regulations were cholera, or “ship fever,” followed by typhus and smallpox. Kapp reported medical “facts” demonstrating “that the ships on board of which cholera broke out were those which were most crowded with passengers, and the vessels on board of which deaths from other diseases occurred were next most crowded, whilst the remainder, which were healthy, had the lowest average of passengers.” Throughout history, governments empowered port officials to protect local people from possible diseases carried by those arriving on vessels from foreign ports. In Europe and Great Britain central governments delegated this police power to port officials, who administered quarantines and exercised authority to deport aliens deemed a threat to the general welfare. The U.S. Constitution established a federal-state system, however, in which the separate states rather than the federal government administered police powers governing the health, safety, and welfare of citizens and immigrant aliens alike. As the transatlantic immigrant trade gradually grew from the 1820s to the Panic of 1837, the U.S. and British passenger laws’ weak enforcement thus had profound social welfare consequences for the costs and administration of the states’ police powers.

While federal and British passenger acts encouraged the transport of both healthy and infirm immigrants to U.S. ports, state police powers separated individuals admitted from those excluded. As long as the annual volume of immigrants to all U.S. ports remained low at around 4,000, state port authorities could readily identify and decide whether to deport the small proportion of undesirables. The statistics collected under the federal Passenger Act indicated not only the increasing immigrant totals but also that New York City was by far the leading destination of all national groups, especially the Irish and Germans. Indeed, by the Panic of 1837 about two-thirds of all foreign immigrants disembarked in New York. The factual evidence also showed that German ports enforced spatial standards that reduced shipboard crowding better than did the British ports, creating divergent welfare conditions between German and Irish immigrants. New York officials initiated a police power system that accommodated the uneven health and welfare of immigrants seeking admission to the state. Shippers signed bond agreements guaranteeing that disembarking passengers were not diseased, destitute, criminal, or dangerous radicals who within as long as a decade might jeopardize the state’s welfare.

The bond agreements were the first step in states’ regulation of immigrants that encouraged admission rather than exclusion. The bonds required two sureties using negotiable notes, which in turn provided long-term credit designated for the support of almshouses. In addition, New York City officials granted shippers the option to “commute” the bonds by paying a fee for each immigrant carried aboard ship. Shippers could include the cost of the commutation fee in the ticket price. As the volume of the transatlantic immigrant trade increased during the 1830s, ticket prices reflected greater than ever competition, which led shippers often to pay the total commutation fees using negotiable bills and notes. Like the bond-sureties, the commutation fees provided New York City officials another source of credit, which defrayed social costs of administering the almshouses and other immigrant welfare services. The state also authorized city officials to support the immigrant regulation system with a portion of the auction duties collected from the sale of all imported goods entering the port. The state also enabled local officials to levy an “alien tax” on each and every foreign immigrant without regard to health, which funded the administration and services the city provided at the Maritime Hospital adjacent to quarantine on Staten Island. The system of bonds, sureties, commutation fees, auction duties, and the alien tax gave New York City officials a stake in admitting rather than excluding foreign immigrants.

The admission of foreign immigrants to U.S. ports also influenced citizenship. The Constitution granted the federal government the power to naturalize foreign immigrants residing within states and federal territories. Immigrants residing in federal territories acquired by treaty from foreign nations, in the Northwest Territory, which the states ceded to the federal government in 1787, or in the territories separating slavery and free labor in the 1820 Missouri Compromise acquired federal citizenship. The states Congress established from federal territories conferred state citizenship. For foreign immigrants who after admission continued to reside in New York, Massachusetts, or other states, this state and federal citizenship triggered complex issues of interstate privileges and immunities and qualification for federal court jurisdiction. Still, Justice Bushrod Washington noted in 1824, “every citizen of a state owes a double allegiance: he enjoys the protection and participates in the government of both the State and the United States.” Robert Ernst, a historian of New York City immigrant life from 1825 to the Civil War, described the realities of acquiring what amounted to dual citizenship: “Immigrants were met at the boat; a ‘naturalization bureau’ was set up at the” city’s Tammany Hall “Wigwam where aliens were advised and assisted in filling out naturalization papers; and it was common knowledge that many of these adopted citizens voted before they had fulfilled the Federal residence requirement of five years.”

Chief Justice John Marshall’s Supreme Court established constitutional precedents interpreting the federal commerce power and state police powers that facilitated state admission of immigrants. The Constitution’s Article I, Section 8, enumerated the Commerce Clause enabling Congress “to regulate Commerce with foreign Nations, among the several states, and with the Indian Tribes.” In Gibbons v. Ogden (1824) the Marshall Court held that Congress possessed an exclusive commerce power to license vessels plying interstate coastal waterways and to enact treaties and other international agreements such as the tonnage regulations imposed in the federal Passenger Act. This exclusive commerce power encouraged a steady flow of immigrants to U.S. ports and among the states and territories. Marshall’s opinion in Gibbons also upheld state regulation affecting foreign trade, such as quarantine and use of local pilots, which the Court later upheld in the Cooley case (1852). Other commerce power provisions in Article I, Sections 8–10, included limited taxes, customs, and tonnage that authorized shared federal-state regulation, such as “essential inspections.” During the early 1830s in New York City v. Miln Marshall delayed deciding whether state police regulations regulating admission or exclusion of immigrants designated as legal “persons” violated federal laws and an exclusive commerce power. By the 1837 Panic the Miln litigation embraced divisive immigrant, free black, and slavery politics in New York, Massachusetts, and the Supreme Court.

New York’s 1824 Passenger Act and Alien Tax
in Law and Politics, 1819–1837

New York’s rise as the nation’s leading port in the transatlantic immigration trade drew upon federal and state regulations that encouraged admission of immigrants. The statistics stipulated under the 1819 U.S. Passenger Act established that in 1821 New York had four times the number of immigrants arriving aboard vessels from foreign ports compared to each of its closest competitors: Boston, Philadelphia, New Orleans, or Baltimore. The comparatively larger number of immigrants entering New York City resulted in the state assembly passing the Passenger Act of 1824. The U.S. Passenger Act focused on the number, birthplace, gender, age, and occupation of immigrants. New York’s 1824 Passenger Act, however, required shipmasters to provide written reports of each passenger’s physical and mental condition. The reports were the basis for bond and surety agreements between shipmasters and the city; they also established a record enabling the mayor’s office to discharge liability if the shipper instead paid the commutation fee. The reports also aided collection of the alien tax that supported the Maritime Hospital, though the tax was levied on passengers and crew alike without regard to health. Regulations instituted in U.S. and New York passenger laws enabled city officials and brokers to pursue corrupt practices through the bond, surety, and alien tax system, which in turn implicated state politics embracing immigrants, free blacks, and slavery in the 1836 presidential election.

The alien tax was...

Table of contents

• Front Cover
• Series Page
• Title
• Copyright
• Dedication
• Contents
• Editors’ Preface
• Acknowledgments
• Introduction
• 1. Origins and Precedents in Law and Politics, 1819–1837
• 2. Federal and State Court Litigations, 1837–1843
• 3. Alien Tax Cases Appealed in Crises, 1843–1848
• 4. Passenger Cases: Divided Decision and Opinions, 1848–1849
• 5. Passenger Cases: Precedential Significance, 1849–1870
• 6. Federal Supremacy and a Mixed Legacy of the Passenger Cases
• Conclusions
• Chronology
• Bibliographical Essay
• Index
• Back Cover