Page:Immigration and the Commissioners of Emigration of the state of New York.djvu/194

166 Woodbury (7 Howard, 546) holds that legislation respecting foreign paupers is not required to be uniform.

The fourth clause of the eighth section of the first article provides that Congress shall have power "to regulate commerce with foreign nations, and among the several States, and with the Indian tribes."

Is or is not this power vested in Congress to the exclusion of the States? The affirmative is held by McLean, J., of the majority in Smith vs. Turner, on the ground that the idea of its being vested concurrently in Congress and in the States involves a total repugnancy (Holmes vs. Jennison, 14 Peters, 517), and because two wills cannot be compatibly exercised respecting the same subject at the same time (Houston vs. Moore, 5 Wheaton, 23). He says that in Gibbons vs. Ogden, 9 Wheaton, 196, Johnson, J., expressly, and the majority of the court impliedly, held that the power was exclusive, and that Judge Story drew the same result from Gibbons vs. Ogden in New York vs. Milne, 11 Peters, 156 (Judge Story there also says that he knew C. J. Marshall [then deceased] agreed with him). To the same effect, he says, Marshall, C.J., reviewed the whole ground in Gibbons vs. Ogden. The Constitution restricts the power of the States to lay duties on imports, and this was admitted and acknowledged in Gibbons vs. Ogden to admit the existence of a power to tax in the States. "But," says Judge McLean, "I do not think it admits the power of the States to regulate commerce." He refers to Wilson vs. The Blackbird Creek Marsh Co., 2 Peters, 250, and says "that it does not decide, as contended, that a State may regulate commerce, but only that where a creek otherwise navigable falls into the sea, but is of so limited an extent that it may well be doubted whether the general regulation of commerce will apply to it, and a State causes it to be dammed for the sake of the public health, the Supreme Court of the United States will not overrule such a State law until Congress expressly exercises federal jurisdiction over the subject. Judge Wayne, of the majority in Smith vs. Turner, says (7 Howard, 410) that the exclusiveness is unquestionable since Gibbons vs. Ogden, and (p. 415) that the States have given away all control of commerce, except the regulation of their internal trade. Admitting that the opinion delivered by Judge