Passenger Cases.-Mr. Justice Wayne's Opinion. ences could not be reconciled, Mr. Justice Thompson said he would read it as his own. Then Mr. Justice Barbour was asked to write an opinion for the majority of the court. He did so, and read that which is printed as such, in our last conference of that term, the night before the adjournment of the court. The next day it was read in court, all of the judges being present when it was read, except Mr. Justice Baldwin. In the course of that morning's sitting, or immediately after it, Mr. Justice Baldwin, having examined the opinion, objected to its being considered the opinion of the court, on account of what was said in it concerning the power of Congress to regulate commerce, and what was commerce. He sought Mr. Justice Barbour, with the view of having it erased from the opinion, declaring, as all the rest of us knew, that his objection to the opinion of Mr. Justice Thompson [*432 was on account of what it contained upon the subject of commerce; that his objection to the reasoning upon the same matter in Mr. Justice Barbour's opinion was stronger, and that he had only assented that an opinion for the court should be written, on the understanding that so much of the act of New York as was in issue by the pleadings should be treated as a regulation, not of commerce, but poiice. Without his concurrence, no opinion could have been written. Unfortunately, Mr. Justice Barbour had left the court-room immediately after reading his opinion, already prepared to leave Washington in a steamer which was in waiting for him. Mr. Justice Baldwin did not see him. The court was adjourned. Then there was no authority to make any alteration in what had been read as the opinion of the court. Mr. Justice Baldwin wished it, but, under the circumstances of preparation which each judge was making for his departure from Washington, nothing was done, and Mr. Justice Baldwin determined to neutralize what he objected to in the opinion by publishing in the reports his own opinion of the That was not done, but he did so contemporarily with the publication of the reports, in his View of the Constitution. There it is, to speak for itself, and it shows, as I have said, that so much of the opinion in the case of New York v. Miln as related to commerce did not have the assent of Mr. Justice Baldwin, and therefore not the assent of a majority of the court. case. How, then, did the case stand? Mr. Justice Thompson gave his own opinion, agreeing with that of Mr. Justice Barbour, that so much of the section of the act of the legisla ture of New York as applies to the breaches assigned in the Passenger Cases.-Mr. Justice Wayne's Opinion. declaration does not assume to regulate commerce between the port of New York and foreign ports, and that so much of said section is constitutional, but giving his own views of the commercial question as it stood in relation to the case. The attitude of Mr. Justice Baldwin with respect to the opinion has just been told. Mr. Justice Story dissented from every part of the opinion, on the ground that the section of the act in controversy was a regulation of commerce, which a State could not constitutionally pass. Mr. Justice McLean is here to speak for himself, and he did then speak as he has done to-day in these cases concerning the power in Congress to regulate commerce being exclusive, and held that persons are the subjects of commerce as well as goods, contrary to what is said in the opinion (136th page), that persons are not. I certainly objected to the opinion then, for the same reasons as Mr. Justice McLean. Thus there were left of the seven judges but two, the Chief Justice and Mr. Justice Barbour, in favor of the opinion as a whole. *I have made this narrative and explanation, under *433] a solemn conviction of judicial duty, to disabuse the public mind from wrong impressions of what this court did decide in that case: and particularly from the misapprehension that it was ever intended by this court, in the case of New York v. Miln, to reverse or modify, in any way or in the slightest particular, what had been the judgments and opinions expressed by this court in the cases of Gibbons v. Ogden and Brown v. Maryland. And I am happy in being able to think, notwithstanding the differing opinions which have been expressed concerning what was decided in those cases, that they are likely to stand without reversal. The Chief Justice, the morning after I had read the foregoing statement in the case of New York v. Miln, made another to counteract it, in which he says his collections differ from mine in several particulars. I do not complain of it in any way. But it enables me to confirm my own in some degree from his, and in every other particular in which it does not give such assistance, the facts related by me are indisputable, being all in the report of the case in Peters, from which I took them. They are in exact coincidence, too, with my own recollections. The only fact in my statement not altogether, but in part, taken from the record, is Mr. Justice Baldwin's discontent with the opinion written by Mr. Justice Barbour, and his wish that it might not as a whole be published in our volume of reports as the opinion of the court. The chief justice admits that Mr. Justice Baldwin did apply to him after the Passenger Cases.-Mr. Justice Wayne's Opinion. adjournment of the court, and before they left Washington, for that purpose. Now if, by mistake or oversight, a judge shall fall into an admission, which more care afterwards enables him to recall and correct before the judgment has been published, but after it has been read, whatever may be the operation of the judgment, does it follow that the argument in the opinion in which the judgment is given continues to be the law of the court? And if the same judge, after more careful and matured thought, publishes contemporarily his opinion, differing from the dictum which had escaped his notice, will that make it law? Is it not plain that it is a case of mistake, which cannot make the law? And if his coöperation is essential to the validity of the original opinion, from those who may advocate it being thrown into the minority by his withdrawal, and his declaration that he never meant to cooperate in it in the particular objected to, can it be said that it ever was the law of the court? Is it at all an uncommon thing in the English and American law reports, that a case is published as law which is *deemed afterwards not to be so, on account of error in its publica[*434 tion, from its not having been really the opinion of the court when it was published? Mistake in all cases restores things to the correct condition in which they were before the mistake was made, except where the policy of the law has determined that it shall be otherwise. A single mistaken and misstated case is not within that policy. Long acquiescence, or repeated judicial decisions, may be, and then only because the interests of society have been accommodated to the error. But the chief justice says that he has the strongest reason to suppose that Mr. Justice Baldwin became satisfied, because, in his opinion in the case of Groves v. Slaughter, he quotes the case of New York v. Miln with approbation, when speaking in that case of the difference between commercial and police powers. I certainly cannot object to the opinion of Mr. Justice Baldwin in Groves v. Slaughter being a test between the. chief justice and myself in this matter; for Mr. Justice Baldwin's opinion in that case is the strongest proof that could have been given four years afterwards, by himself, that he never was reconciled to the opinion of Mr. Justice Barbour in Miln's case as a whole. For instance, in that opinion he does not leave the exclusive power of Congress to regulate commerce to the disclaimer in Miln's case, that it was not the intention of the judges to decide that point in that case. He says, "That the power of Congress to regulate commerce among the States is exclusive of any inter Passenger Cases.-Mr. Justice Wayne's Opinion. ference by the States has been, in my opinion, conclusively settled by the solemn opinions of this court in Gibbons v. Ogden, 9 Wheat., 186-222; and in Brown v. Maryland, 12 Wheat., 438-446. If these decisions are not to be taken as the established construction of this clause of the Constitution, I know of none which are not yet open to doubt, nor can there be any adjudications of this court which must be considered as authoritative upon any question, if these are not to be so on this." And the learned judge goes on to say,—“Cases may indeed arise, wherein there may be found difficulty in discriminating between regulations of commerce among the several States and the regulation of the internal police of a State, but the subject-matter of such regulations of either description will lead to the true line which separates them, when they are examined with a disposition to avoid a collision between the powers granted to the Federal government by the people of the several States and those which they reserved exclusively to themselves. Commerce among the States, as defined by this court, is trade, traffic, intercourse, and dealing in articles of commerce between States by its *435] State. *citizens or others, and carried on in more than one State. Police relates only to the internal concerns of one State; and commerce within it is purely a matter of internal regulation, when confined to those articles which have become so distributed as to form items in the common mass of property. It follows, that any regulation which affects the commercial intercourse between any two or more States, referring solely thereto, is within the powers granted exclusively to Congress, and that those regulations which affect only the commerce carried on within one State, or which refer only to subjects of internal police, are within the powers reserved." And then it is that the sentence follows cited by the chief justice to show that he had reason to suppose that Mr. Justice Baldwin had become satisfied The citation made. by me from his opinion shows what his opinion was in respect to the power of Congress to regulate commerce, confirming what I have said in my statement, that four of us were of the same opinion when that point was touched upon in the case of Miln, and that Mr. Justice Baldwin refused to sanction what was said by Mr. Justice Thompson in respect to it in the opinion written by him for the court in Miln's case. And that he was not satisfied as to that sentence of Mr. Justice Barbour's opinion in which it is said that persons are not the subjects of commerce, is manifest from that part of his opinion in Groves v. Slaughter in which he says that commerce is trade, traffic, intercourse ";-intercourse, in 66 Passenger Cases.-Mr. Justice Wayne's Opinion. the sense of commerce, meaning, as it always does, "connection by reciprocal dealings between persons and nations." But, further, the chief justice says that Mr. Justice Baldwin called upon him and said there was a sentence or paragraph in the opinion with which he was dissatisfied, and wished altered, thus confirming all that I have said in respect to the case in what is in it concerning persons not being the subjects of commerce, that being the only declaration in the opinion relating to commerce, it having been previously declared that the exclusiveness of the regulation of commerce in Congress was not to be decided. All that was meant to be decided in Miln's case was, that the regulation stated in the certificate of division of opinion between the judges in the Circuit Court was not a regulation of commerce, but one of police. In respect to our lamented brother Barbour not knowing the dissatisfaction of our brother Baldwin and other members of the court with the opinion, I know that he did know it. In regard to the chief justice's declaration, that he had never heard any further dissatisfaction expressed with the opinion by Mr. Justice Baldwin, and never at any time, until this case came before us, heard any from any other member of the court *who had assented to or ac[*436 quiesced in the opinion; while, of course, that must be taken to be so, as far as the chief justice is concerned, I must say that I have never, in any instance, heard the case of Miln cited for the purpose of showing that persons are not within the regulating power of Congress over commerce, without at once saying to the counsel that that point had not been decided in that case. I have repeatedly done so in open court, and, as I supposed, was heard by every member of it. I have only said, in reply to the chief justice's statement, what was necessary to show that it was not decided in Miln's case, by this court, that persons are not within the power of Congress to regulate commerce. Indeed, it would be most extraordinary if the case of Gibbons v. Ogden could be considered as having been reversed by a single sentence in the opinion of New York v. Miln; upon a point, too, not in any way involved in the certificate of the division of opinion by which that case was brought to this court. The sentence is, that "they [persons] are not the subjects of commerce; and, not being imported goods, cannot fall within a train of reasoning founded upon the construction of a power given to Congress to regulate commerce, and the prohibition to the States from imposing a duty on imported goods." In the case of Gibbons v. Ogden the court said,-"Com |