power, of which she sought a recognition, already attached to each State in its sovereign and independent capacity.

The Southern journals of the day, in commenting upon Governor Wilson's message, use very strong language. The National Intelligencer, always a respectable print, but supposed to lean less to the side of the States, than to that of the Federal government, published the following impartial and just views on this subject:

"With regard to the abstract question of the legality of the act prohibiting the admission of persons of color into the ports of SouthCarolina, we are free to say, that, with our little understanding of the subject, we have thought that South-Carolina had, in this respect, exercised no other authority than that which the States have, without dispute, exercised in their quarantine regulations. The right to preserve the lives and peace of the people, is surely as sacred as the right to protect their health. The right to expel paupers, and to prohibit sick persons from landing, appears to us to be identically of the same nature as that to prohibit the landing of persons known to be dangerous to the peace of the community."

We quote, also, as sound doctrine, the following remarks of the Richmond Enquirer, elicited by this controversy:

"The correspondence between the British Minister and Mr. Wirt, and the proceedings of the South-Carolina Legislature, are entitled to great consideration. Can the States have given up the right to watch over their own police? If a deadly pestilence rages at a foreign port, have they no authority to impose quarantine upon foreign vessels, although it might interfere with the commerce of other nations, however regulated by treaties or acts of Congress? If they can drive a physical pestilence from their borders, may not the Southern States exclude a pestilence which may affect the morals of a peculiar portion of their population? Are they bound to receive aliens, who may carry the very seeds of insurrection into their bosom? Suppose our slaves returning from Hayti,-suppose suspected tools from that island should arrive at Charleston in a British vessel,-is there no right to guard against the danger? Such cases present very serious questions. Our Northern countrymen ought to allow for the peculiar organization of our society,-bless themselves, if they please, for their exemption from its evils, but they ought no less to sympathize with us. For the same reason, the treaty-making power ought to shape its measures so as to respect, as much as possible, the peculiarities of the slave-holding States.

"The Constitution of the United States does not recognize the State Quarantine Laws, and yet they are laid without the slightest objection. Why should not this danger also call for prevention, though that prevention might be supposed to clash here and there with the treaty power? Does not this, at all events, show, how carefully the treaty power ought to be exercised?"

The same views were advocated with signal ability, and at much length, by Col. Hunt, in his argument before the Federal Circuit Court, where this question first arose. The subject was fully exhausted by him;-no new facts have since arisen to be supplied,-no new points to be dwelt upon, and nothing is now to be said upon the matter, which has not been better said by him already. We would gladly, therefore, transfer his entire argument to the pages of this Review, as the best possible comment upon the recent proceedings of the State, did our limits permit, but as this is impossible, we must content ourselves with making such extracts from it as will place the policy of the law and its constitutionality in the strongest point of view.

Col. Hunt contended,

"1. That the provision of the law now in question, is one which a sovereign State may enact, without violating the law of nations, or affording any just grounds of offence.

"2. That South-Carolina was a sovereign State prior to, and at the time she entered into the Federal compact.

"3. That the right which South-Carolina possessed to pass such a law, was one, which, from its nature, under the peculiar circumstances of her slave population, she could not surrender, and has not surrendered, to the Federal government.

"4. That the Convention of 1818 between Great Britain and the United States, does not interfere with the perfect right of the State, to pass and enforce the provision of the law in question, and, if it did, it would not be obligatory upon the State, inasmuch as the treatymaking power can make no stipulation which shall impair the rights, which, by the Constitution, are reserved 'to the States respectively or to the people.' "

Under the first head, Col. Hunt appealed to the law of nations, and cited such authorities as were necessary to substantiate his proposition:

"The right of any sovereign," he said, "to interdict altogether the entry of foreigners into his dominions, is and has been universally admitted. As the wigwam of the Indian, as well as the dwelling of the civilized man, is emphatically styled his castle, where no intruder has a right to inspect his domestic economy, or disturb his repose, so is the territory of a nation inviolable by the universal assent of mankind, and all who enter it do so as guests, and of course are bound to observe the duties of guests, and have a right to expect the offices of hospitality. But as the Ind an has a perfect right to secure his habitation against a guest who may infect its inmate with the diseases of civilization; as the civilized man can secure his family against the contagion of the dissolute or depraved, by closing his doors, or selecting his visiters, so every sovereign State has the

"

perfect right of interdicting all intercourse with strangers, or of sefecting those whose influence or example she may fear, and confining the exclusion to them. A master of a family excludes or receives his visiters, according to the peculiar feelings and situation of his own household. A State must be the sole judge to decide what strangers may or may not enter its territories.

"The power to exclude or admit strangers, implies the right to direct the terms upon which those who are admitted shall remain. As an individual may direct what apartment his guest shall occupy, a State may confine strangers to such limits as its own policy may dictate. The sovereign may forbid the entrance into, or dwelling within his territory, either in general to every stranger, or in a particular case, or to certain persons, or on account of certain affairs, according as he shall find it best calculated for the advantage of the State. There is nothing in all this that does not flow from the right of the dominion and the empire. Every one is obliged to pay respect to the prohibition, and he who dares to violate it incurs the penalty decreed to render it effectual. Since the lord of the territory may forbid its being entered when he thinks proper, he has doubtless the power to make the conditions on which he will admit to it.'*

"Upon these principles almost every nation has at different times exercised the right to regulate its intercourse with strangers. Some for the purpose of preventing the introduction of contagious diseases, others to avoid the corrupting influence of strange manners, as the Chinese, who perhaps were jealous of those secrets both in agriculture and the arts, which rendered their productions valuable in commerce; as well as those peculiar customs which they venerated. Other nations have adopted prohibitory and precautionary measures for fear of the introduction of missionaries, preaching what was deemed treason, either against the church or State. Not a government of Europe, but what has, at one period or other, exercised a surveillance over strangers, as fear or policy dictated,-nay, some States not only forbid their entry, but actually detain strangers there, when reasons of State prompt them to desire an opportunity of watching their motions. The policy of France is notorious for its inquisitiveness and interference in relation to strangers, and the other continental powers use every effort to rival her in this respect.

"This State, having a large slave population, conceives it prudent to guard against the moral contagion which the intercourse with foreign negroes produces, and therefore she prohibits them from remaining in any other part of the State, than the place designated by the act. It is a mere police regulation, which the peculiar circumstances of the State require. Each nation has a right to choose on this subject, as well as on all others, the laws most agreeable to circumstances. All quarantine laws are founded upon the right of self-preservation, and it is quite immaterial whether destruction is threatened by disease or bloodshed.

"If South-Carolina has to dread the moral pestilence, which a free intercourse with foreign negroes will produce, she has, by the primary

Vattel, B. ii., c. 7, ss. 94, 100.

+ Vattel, B. i., c. 13, s. 170.

law of nature, a right, within her own limits, to use every means to interdict it. She is not bound to wait until her citizens behold their habitations in flames, and are driven to seek a refuge by the glare of the conflagration. To prevent evils by precautionary measures, is the most humane course of legislation, and is the imperative duty of every State. 'Lead us not into temptation,' is a prayer to which every wise and just government should listen. The nature of things dictates, that each nation must be the sole judge of its own dangers. Who so likely to judge correctly as those immediately interested? An enemy or a rival would not be trustworthy. But England, whose agent has taken so active a part in this case, has given more than one proof, that each nation must and will decide on its own State necessities. The great Napoleon threw himself upon her hospitality, and claimed the boasted protection of her laws, yet he was detained a prisoner in time of peace,-deprived of all intercourse with his family, confined to an unhealthy and barren rock,—and finally murdered by the lingering process of imprisonment. State necessity is pleaded by the British government in justification of that deed, and yet South-Carolina cannot secure her domestic tranquillity, by the temporary seclusion of a negro, because he is a British subject!"

Having proved, by the laws of nations, that the admission of strangers is a matter wholly within the discretion of a State, and that police and internal laws must, of necessity, be regulated by the circumstances of the State, Col. Hunt next enters on an argument to establish his second and third propositions, viz: that South-Carolina was a sovereign State at the time she entered into the Federal Compact, and that her right to pass the law in question was one which, under the peculiar circumstances of her slave population, she did not, and, in fact, never could, surrender to the Federal government. His reasoning on this subject appears to us perfectly satisfactory and conclusive, and would be regarded as an unanswerable argument by the most fastidious politician of the States' Rights school. We quote from the latter portion of it, what he says on the power of Congress, under the Constitution, to regulate commerce between the several States, the chief ground relied upon by the late Attorney General Wirt, and recently insisted on by the Governor of Massachusetts, as settling the unconstitutionality of the South-Carolina law :

"It is contended," he says, "that although there be no express relinquishment of the natural right which each State has to define the condition under which foreigners shall enter its territory, yet inasmuch as Congress has power to regulate commerce, it has the right, exclusively, of prohibiting the entry of such persons as are concerned in navigation, and those not prohibited by Congress, cannot be pro

hibited by the States. I admit the right to regulate commerce is an exclusive right, but I deny that the enactment of police laws infringes that exclusive right. Were Great Britain to send her convicts or her incurables to our shores, the prohibition of their entry would be no regulation of commerce. The law in question merely affects the mode and prescribes the manner in which the commerce regulated by Congress shall be carried on. From the first attempt of the united colonies to act in concert, the want of uniformity in the commercial regulations of the States, was felt as an evil of no common magnitude. But it was want of uniformity in the import and export duties, in the tonnage and the like, that was complained of. No thought was ever taken of preventing each State making such laws in relation to the entry and stay of foreigners, as their local policy required. From the adoption of the Constitution to the present day, the several States have continued to exercise the right unquestioned. New-York subjects our vessels to quarantine, and confines our citizens to her hospitals, although we have no faith in contagion. Yet if we confine her negro cooks to a particular spot in Charleston, we are told it is a violation of the Constitution. We have much more reason to believe in the moral contagion they introduce, than in the importation of yellow fever. However, as New-York judges for herself upon one point, South-Carolina has the same right to decide on the other, especially as she considers her interest and safety at stake. "If by the construction of the power to regulate commerce, the States can do nothing affecting those who are concerned in trade, but what is expressly enacted by Congress, then the laws of New-York, regulating our quarantine, are unconstitutional. It is a felony to leave the quarantine ground, because the lives of the people of NewYork are thought by themselves to be endangered by the presence of a citizen of Charleston; the punishment is absolute slavery in the Penitentiary or State Prison. In South-Carolina, we think the presence of a free negro, fresh from the lectures of an abolition society, equally dangerous; and we require his stay in a particular enclosure. Thus both States exercise the right which nature and necessity sanction. The law in question, then, is one of that class, which every State must retain the right to enact, and the circumstances which render such enactments necessary, are to be decided by the party whose safety is hazarded."

茹

These extracts are sufficient for our present purpose. They prove clearly that the law in question is a mere police enactment, not a regulation of commerce,-that South-Carolina had the right and was fully invested with the power, as a sovereign State, to pass such a law,—a law equally consistent with the code of nature and of nations, and that, from circumstances of which she was the sole judge, she was in duty bound to pass such a law for her own security, and that whatever jealousies may exist in certain quarters, or unjust claims be preferred, or false feelings of humanity be cherished, the law is wise, politic, necessary and perfectly