Barbour as that of the Court, in 1837, in New York vs. Milne (11 Peters, 130), militates against this view, he says that opinion never had the majority, but was assented to by three judges (Barbour, Taney, C.J., Thompson) only out of seven (Baldwin, McLean, Wayne, Story). The opinion in that case of Judge J. BaldwinBaldwin, which was accidentally excluded from the report, but published the same year in Baldwin's "Views of the Constitution," also declares the power exclusive. At the first consultation of the Judges, Thompson, J., was directed to write the opinion of the Court. When he read his production, it was objected to on another ground, that is, on the ground that Thompson declared a State might regulate commerce wherever there was at the time no conflicting Congressional legislation, whereas the majority of the Court preferred to leave that point open. He then said he would read it as his own opinion. Barbour then undertook to deliver the opinion of the Court. Without a further consultation, he read it, just before the Court separated.
Baldwin immediately objected, on the ground that Barbour said persons were not the subjects of commerce, and not imported goods; privately, but in vain. Wayne says there was no intention in New York vs. Milne to deviate from Gibbons vs. Ogden or Brown vs. Maryland (12 Wheaton, 438). He admits that, in Grove vs. Slaughter (15 Peters, 549), Baldwin spoke approvingly of New York vs. Milne, but that, so far from denying the exclusiveness, he, in that very opinion, asserted it to have been conclusively settled by Gibbons vs. Ogden and Brown vs. Maryland. Judge Grier, likewise of the majority in Smith vs. Turner, evidently regards the question of the exclusiveness of this power as still open.
Daniels, J., of the minority in Smith vs. Turner, admits that in J. DanielsGibbons vs. Ogden Judge Johnson pronounced for exclusiveness, but remarks that the majority in that case expressly disclaim an intention to pass upon the point. He contends that Story, J. (one of the majority in Gibbons vs. Ogden), held, in Houston vs. Moore, 5 Wheaton, 48, the direct contrary of what in New York vs. Milne, 11 Peters, 158, he pronounces to be the law as settled in Gibbons vs. Ogden (see 13 Barb., 206; People vs. Huntington, 4 New York Leg. Obs., 187). Judge Barbour, Judge Thompson, and
