have been decided between the same parties (on appeal?), 30 Jersey Reports, 531.
In ex parte Crandall it was decided (1 Nev., 294) that a State may tax passengers leaving the State.
A State may tax a State steamship company plying to and from Brazil, on its capital (People vs. Commissioner of Taxes, 48 Barb., 157).
It is almost impossible to say on which side the scale of authority turns. Authorities conflictingThe question, however, may be evaded, without avoiding to decide the question here involved.
Because it is not disputed that where Congress has regulated commerce the States cannot interfere by conflicting regulations (Gibbons vs. Ogden, 9 Wheaton, 195; Grier, J., of the majority in Smith vs. Turner).
But, has Congress regulated commerce in this particular? "Aye," say Judge McLean and Judge Grier, of the majority in Smith vs. Turner, "it has regulated it, by willing that this trade should be free." "Aye," says Judge Catron, "because they have exempted the property of emigrants" (Act March, 1799, §46), and because they expressly allow the emigrant to appear at the Custom House with his goods (17 Howard, 443), and to come into the federal courts and sue (444).
"No," says Taney, C. J., of the minority, "because the Act of 1799 only presupposes the landing." It does not repose the decision of who shall be allowed to inhabit the country in a shipmaster (p. 471). Nelson agrees with Taney.
Woodbury, J., says, very forcibly, that it is arguing in a circle to contend that a power is exclusive if Congress speaks, and, therefore, if Congress is silent, that silence is a speech, because the power is exclusive. The power must first be shown to be exclusive before it can be said that the silence of Congress speaks (p. 559). On the hypothesis of exclusiveness in all mere grants, what becomes of concurrent power under any circumstances?
Are passengers the subject of regulations of commerce? The majority of the Court {{left sidenote|{{smaller|Are passengers subject of regulations of commerce?(McLean, Grier, Wayne, Catron, McKinley) in Smith vs. Turner, says Yes. McLean says commerce does not relate exclusively to "commodities," unless they include passengers. Says that has been settled in Gibbons vs. Ogden.
