New York v. Miln, 11 Pet. (36 U.S.) 102 (1837), argued 27–28 Jan. 1837, decided 16 Feb. 1837 by vote of 6 to 1; Barbour for the Court, Thompson concurring, Story in dissent.
Miln was the first major Commerce Clause case to come before the Taney Court. It involved an ordinance requiring ships' masters to provide a passenger manifest, to post security for indigent passengers, and to remove undesirable aliens. Because this ordinance involved the states' powers to control the ingress of persons, the ordinance raised delicate and explosive questions implicating the interstate transit of slaves, free blacks, abolitionists, and antislavery propaganda. The recent precedent of
Gibbons v. Ogden (1824) might have suggested the unconstitutionality of such state regulation, but the hidden presence of
slavery questions skewed constitutional doctrine.
Justice Philip P.
Barbour avoided the dangerous question of concurrent federal‐state commerce powers, suggesting only that the Commerce Clause probably encompassed trade in “goods” rather than “persons” (p. 136). For the first time in its history, the Court then invoked state
police powers as a constitutionally permissible ground for regulating the contents of vessels plying interstate waterways. Barbour's reading of state police powers alarmed antislavery groups. The statute, he said, was a “regulation, not of commerce, but of police” (p. 132); a state's right to protect the health and welfare of its citizens, unlike the right to regulate interstate commerce, had not been “surrendered or restrained,” but was “complete, unqualified, and exclusive” (p. 139). In dissent, Justice Joseph
Story insisted that the law infringed federal powers under the Commerce Clause.
Miln remained good authority until 1941, when the Court ruled that
Miln erroneously permitted legislators to use economic status as a criterion for limiting personal mobility (
Edwards v. California).
Sandra F. Van Burkleo
