also of the minority (p. 471), says the treaty admits foreigners, subject to our laws.
The ninth and tenth articles of the Amendment to the Ninth and tenth articles of Amendment; its construction in Smith vs. TurnerConstitution read as follows:
"9. The enumeration in the Constitution of certain rights shall not be construed to deny and disparage others retained by the people.
"10. The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."
See 1 Story, Constitution, § 447; 1 McLean, 234; 5 Harris (Remd.), 119.
In Smith vs. Turner, Grier, J., of the majority, says: "This is not the case of a police regulation to repel paupers, lunatics, or criminals. That right was vindicated in New York vs. Milne, 1837, 11 Peters, 102, but no more. Here the claim is not a fee or toll for some service rendered, nor a license to become citizens. It is by no means a fact that most of the foreigners who afterwards become paupers remain in the seaports. This tax is founded on the claim of power in a State to exclude all persons from passing through her territory. The same power, if existing, might be exercised by every State through which an emigrant was compelled to travel. This would thwart the cherished policy of the General Government. It is not a necessary appurtenant of the police power. The exclusion of criminals and paupers may be necessary, like that of putrid or pestilential goods, while that of emigrants and sound merchandise is perfectly harmless. The right to tax and exclude does not follow from the right to punish crimes. Else a State might exclude all persons and all vessels."
"This," says McLean, J., same side, "is not a health law. New York vs. Milne does not sustain this act. The acts there under consideration simply exacted reports of all passengers, and imposed a penalty for not reporting. It was an internal police regulation. It did not impose a tax as a prerequisite to the introduction of passengers. Except to guard against diseases and paupers, a State cannot prohibit the introduction of foreigners. It may deny them a residence unless they shall give security to
