Page:Immigration and the Commissioners of Emigration of the state of New York.djvu/200

172 But Taney, C. J., says that this clause has nothing to do with the admission of foreigners (p. 483); it was adopted to prevent one State from making citizens for another.

The first clause of the ninth section of the first article reads: "The migration or importation of such persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the year 1808, but a tax or duty may be imposed on such importations not exceeding ten dollars for each person."

"This clause," says McLean, J., of the majority in Smith vs. Turner, "proves that the regulation of commerce covers voluntary as well as involuntary immigration." McKinley, J., says it distinguishes between migration and importation, by subjecting the latter only to taxation, but that it declares them both subjects of commercial regulations. It impliedly allows Congress to prohibit immigration into all new States even before 1808, and therefore forbids the States to tax it. Wayne, J., agrees with him.

Daniels, J., contends this clause applies purely to the slave-trade (Federalist, No. 42). Taney, C. J., the same (7 Howard, 474; Madison Papers). The power to prohibit voluntary immigration could not have been intended to be conferred, because all the States were in favor of it. All the States then admitted voluntary immigrants. This shows the clause relates to slaves only. "Migration" was used lest "importation" might not aptly apply to human beings. At all events, there is no power to compel the States to admit emigrants. Woodbury, J., says that the power to tax is conferred only respecting slaves. A special clause was introduced for that purpose, because it was doubtful whether such a tax was an impost (1 Blackstone, by Tucker, p. 231). Besides, this class does not confer a power, but limits it (p. 541).

The fifth clause of the ninth section of the first article reads (as far as in point here):

"No preference shall be given, by any regulation of commerce or revenue, to the ports of one State over those of another; nor shall vessels bound to or from one State be obliged to enter, clear, or pay duties in another."