372 BURR— THE TREATY-MAKING POWER [April 20, 



The language used by Mr. Justice Grier needs no extended com- 

 ment.-"^ Like that of Mr. Justice Daniel, it sprang from certain 

 political convictions of the times, and has not been sanctioned by 

 the development of constitutional law. 



The opinions of the dissenting judges in the Passenger Cases-^^ 

 cannot be regarded as possessed of authoritative force. It was 

 urged by them that a tax on every alien coming into a State port was 

 a proper exercise of the police power beyond the control of the 

 Federal government whether operating by act of Congress or by 

 treaty provision, because the tax was devoted to charitable uses; 

 in one case, a marine hospital ; in the other, the support of foreign 

 paupers. The judgments were against the constitutionality of the 

 acts, and inasmuch as the whole current of constitutional law has 

 since moved irresistibly in this direction, these dissenting opinions, 

 like the majority of the others we have been considering, have only 

 an historical interest. The kind of argument which was so popular 

 and so potent during the period from John Marshall's death to the 

 Civil War, whose coloring influence may be seen reflected in such 

 opinions, is well exemplified in these Passenger Cases. Said counsel 

 for New York of the State he represented: 



"She saw with unaffected concern the prodigious strides made by this 

 power to regulate commerce towards engrossing and consohdating the 

 power of the Union. This may well be regarded as the mastodon of con- 

 struction, starting from this bench, and in its giant strides trampling upon 

 the rights of the States and their sovereignty. Fortunately, it is only known 

 to the present day by its colossal bones, scattered through the reports of 

 the early opinions of members of this Court. Its march was arrested, its life 

 terminated, in New York z's. Miln. The noble ground then assumed was 

 maintained in the License Cases.""^" 



A careful reflection upon the implications underlying these words, 

 and upon the magnitude of interstate commerce today, will do much 

 to put a just valuation upon the opinions of many of the judges who 

 immediately succeeded John ^Marshall. 



We thus reach the conclusion of an analvsis of the decisions 



*" Supra, p. 171. 



""7. How., 282 (1849). 



2S0 



Ibid., pp. 378-9. 



