and Legal Miscellany. PUBLISHED BY THE D. B. CANFIELD COMPANY LIMITED, PHILADELPHIA, SUBSCRIPTION, ONE DOLLAR A YEAR. SINGLE COPY, TEN CENTS. Copyrighted 1890. Entered at the Post Office at Philadelphia as second-class matter. Vol. II. September 15, 1890. No. 9. ROGER BROOKE TANEY. Before resuming the narration of Taney's connection with the interstate commerce decisions, of the United States Supreme Court, attention should be given to the portraits in this and the August number of the CURRENT COMMENT. The former one is a reproduction of a part of a full-length photograph from which the statue by Rhinehardt was modelled. The portrait this month is from an engraving loaned for the occasion by Messrs. Gest of the Philadelphia bar. After the Miln case determined that New York might require the filing a passenger list by every incoming ship captain, this State did not appear in an interstate commerce controversy until 1849, when the Passenger Cases required the Court to put a stop to further requirements. From this latter opinion, Taney dissented out of regard for those opinions of the Court between the Miln case and the present, which can be better understood when considered in connection with the Dred Scott case; and also out of regard for principles supposed to have been established in the License Cases, two years earlier. These License Cases were the chief reason for the dissent of three justices when the Original Package Case was decided by the Court in 1890; and the other six justices were bound to say, through Chief Justice Fuller, that they conceded the weight properly to be ascribed to the judicial utterances of Taney, while the necessity of distinguishing between things of general commercial regulation and those of merely local, rather than between things regulated by Congress and things regulated by the State in the absence of congressional action, had compelled not only the decision of this Original Package Case, but also of numerous preceding cases, in a view of the Constitution incompatible with that entertained by Taney. These License Cases were unique in being the unanimous judgment of the Court, but for reasons almost as diverse as there were justices to express them. The Chief Justice and Justices Catron and Nelson thought the State which required a license before liquor could be sold after importation from another State, to be regulations of commerce as is now held, but valid as is not now held, because Congress had not acted. Justices McLean, Daniel, Woodbury and Grier agreed that these laws were mere police regulations and outside of the power of Congress, which is now denied; and Justices Wayne and McKinley did not express any opinion, though they were of the majority of the Court in the Passenger Cases, where the supremacy of the commercial right over State police laws was first declared by the associates of Taney. "It is unquestionably no easy task to mark by a certain and definite line of division between foreign and domestic commerce, and to fix the precise point in relation to every imported article, where the paramount power of Congress terminates and that of the State begins. The Constitution does not attempt to define these limits. They cannot be determined by the laws of Congress or the States, as neither can, by its own legislation, enlarge its own powers, or restrict those of the other, and as the Constitution itself does not draw the line, the question is necessarily one for judicial decision, and depending altogether upon the words of the Constitution." This is the manner in which Taney approached the decision of these cases. The ground for the judgment of the Court was then cleared by denying, as Chief Justice Fuller does in 1890, that liquors are to be classed with disease, pestilence, and pauperism, that is, the cause with its effects which are undeniably to be prevented and not regulated and trafficked in. Then came the statement that the justices could not agree whether the commerce clause of the Constitution prevented the States from legislating. Taney thought it did when Congress had made a law, but not until then. Two years later the Chief Justice became one of the minority of the Court on interstate commerce questions, though the Passenger Cases were actually questions of State taxation of immigrants. But the principles of the claims there made by New York and Massachusetts would have naturally extended to the people who live in New Jersey and traffic in New York as much as oppressed fleeing to this country for a new life. To understand the position of Taney and why he would, in effect, have permitted each State to set up a destructive non-intercourse with neighboring States, it is necessary to go back to the case of Groves v. Slaughter, decided by the Court in 1841. There the Chief Justice delivered an opinion confessedly upon a point not involved in the decision, but to express, extra-judicially, his views upon the propriety of each State being able to exclude or control slaves, without any interposition of Congress. In this sentiment a majority of the Court differed in Prigg v. Penna., decided the next year. Of this case some account has been given in the sketch of Justice Story in the July CURRENT COMMENT. The Chief Justice considered the control by the slave States of their human chattels and of the traffic in such chattels so important that he would have sacrificed what has now grown to the great passenger traffic between this country and Europe, an educational factor of the greatest importance for impressing upon the followers of the suddenly rich that the language, history, and geography of other nations are the sources of valuable accomplishments for the average American. The Chief Justice also denied that Congress had any contro over interstate passenger traffic because commerce meant merchandise. MARSHALL and his associates and the present Justices are all of one mind in securing interstate passenger traffic from petty State jealousies. Else the dweller in the humble Jersey chicken-ranch might be debarred from his daily avocation in New York city; and the denizen of a license State be forbidden a summer excursion to a prohibition watering-place. The law is happily not so. Next to the preservation of slavery TANEY seemed to have a contempt and fear of immigration, and in the Passenger Cases said, in his dissenting opinion, that immigration was likely to produce a numerous and burdensome pauper population, "that a fearful amount of disease and pauperism is daily brought to our shores ;" that ship-masters would "be far more disposed to bring away the worst and most dangerous portion of the population, rather than the moral and industrious citizen." As the judgment of the Supreme Court in the Passenger Cases was against the right of any State to restrict immigration and placed that power in the hands of Congress, where it has since been safely executed, the position of Taney might seem misappre |