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Page:Harvard Law Review Volume 1.djvu/180

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opinion of Woodbury, J. He concurred with Taney, C. J., as to the paramount right of the States to regulate the admission of persons within their boundaries, and also as to the “concurrency” of the power to regulate foreign and interstate commerce. He agreed with Daniel, J., that the laws in question were not regulations of foreign or interstate commerce. The part of his opinion in which he maintains that the laws are not regulations of foreign or interstate commerce is very valuable as reiterating and developing the principles stated in Gibbons v. Odgen. He took the position that the laws were not regulations of commerce, because not passed for the purpose of regulating it, but for an entirely different purpose. The following extracts from the opinion show clearly the views entertained by the learned judge:—

“This statute does not, eo nomine, undertake ‘to regulate commerce,’ and its design, motive, and object were entirely different.” . . . “Many subjects of legislation are of such a doubtful class, and even of such an amphibious character, that one person would arrange and define them as matters of police, another as matters of taxation, and another as matters of commerce. But all familiar with these topics must know that laws on these by States for local purposes, and to operate only within State limits, are not usually intended, and should not be considered, as laws ‘to regulate commerce.’ They are made entirely diverso intuitu.” . . . “To regulate is to prescribe rules, to control. But the State, by this statute, prescribes no rules for the ‘commerce with foreign nations.’ It does not regulate the vessel or the voyage while in progress. On the contrary, it prescribes rules for a local matter,— one in which she, as a State, has the deepest interest, and one arising after the voyage has ended, and not a matter of commerce or navigation, but rather of police, or municipal, or taxing supervision.” . . . “These things are done, as Mr. Justice Johnson said in another case (Gibbons v. Ogden), ‘with a distinct view’ (from regulating commerce). And it is no objection that they ‘act on the same subject,’ or, in the words of Chief-Justice Marshall, ‘although the means used in their execution may sometimes approach each other so nearly as to be confounded.’ But where any doubt arises, it should operate against the uncertain and loose, or what the late Chief-Justice called ‘questionable,’ power to regulate commerce, rather than the more fixed and distinct police or taxing power.”