Page:Immigration and the Commissioners of Emigration of the state of New York.djvu/199

Rh they cannot make them by regulating commerce, and that he knew Marshall, C. J., had been of the same opinion.

But the majority in New York vs. Milne seem to have thought otherwise, and so do the minority in Smith vs. Turner. Taney, C.J., savs the negative was ruled in the License Cases (5 Howard, 473) and in the Federalist, No. 32. A State tax, though at the same time a regulation of commerce, is not forbidden (7 How., 419; Billings vs. Providence Bank, 4 Peters, 561). It is no objection to a quarantine regulation that it is self-supporting (p. 414). Woodbury says that to impute sinister designs to a State is unseemly (552).

A State law may exclude foreign criminals and diseased persons, and may, to prevent loss by subsequent pauperism, exact bonds from passengers, and may compel masters, before landing, to report their passengers, and may have them inspected.

The latter part of this proposition was denied by the minority in New York vs. Milne; and such appears to have been the opinion of Marshall, C. J., in Grove vs. Slaughter. But the law is now clearly settled. The exaction of bonds has not the sanction of any decision of the court, for the judgment in New York vs. Milne carefully avoids the point, and Judge Taney admits that there was great diversity (7 How., p. 481); he says for himself that he entertains no doubt of the lawfulness of these bonds.

Can a State first exact bonds, and then provide that they may be commuted in money? Such is the present law of New York, and its constitutionality, though unsustained by decision, appears to be tacitly admitted.

The fourth clause of the eighth section of the first article reads thus:

"Congress shall have power to establish a uniform rule of naturalization."

This power is exclusive (2 Dallas, 372; 2 Wheaton, 269; 5 Howard, 585; 7 Howard, 556; 3 W. C. C., 314). Judge Catron, of the majority in Smith vs. Turner, says that this provision forbids the exclusion of foreigners by the States, or the taxation of them on entering (7 Howard, 448). So does Judge Wayne (p. 426).