THURLOW v. MASSACHUSETTS

It was argued in January, 1845, by Mr. Choate and Mr. Webster, for the plaintiff in error, and Mr. Huntington, for the State. Being ordered to be reargued, it was now argued by Mr. Webster alone, for the plaintiff in error, and Mr. Davis, for the State.

Mr. Webster opened the case. The best mode of presenting his views of the points which arose will be, to reprint the brief filed by himself and Mr. Choate in the former argument. It was as follows: —

The plaintiff in error, a citizen of the United States, living in Massachusetts, was convicted, under the Revised Statutes of that State, ch. 47, and the statute of that State of 1837, ch. 242, of sales of foreign spirits, made in 1841 and 1842, without a license. He seeks to reverse the judgment, upon the general ground that those statutes are repugnant to constitutional acts of Congress, and to the constitution of the United States; and contends.

1st. That they prohibit even the importer of foreign spirits from selling them in the bottle, keg, or cask in which he imports them, either for consumption at the place of sale, or for carrying away; and are therefore unconstitutional, within the case of Brown v. Maryland, 12 Wheat. 419.

2d. That they are void, as being repugnant to the legislation of Congress, in their application to purchasers from importers, of whom the plaintiff is one; and hereunder he submits the following analysis of his argument.

1st. The statutes of Massachusetts are not auxiliary to, cooperative with, and merely regulative of, the legislation of Congress, which admits foreign spirits to importation under prescribed rates of duty, but are antagonistical to and in contravention of it, since they seek to diminish and discourage the sales of imported spirits to a greater degree than the legislation of Congress seeks to do it, upon the ground that the policy of Congress in this behalf is an erroneous policy.

To maintain this, the object and operation of the Massachusetts statutes, and the policy and the principle of constitutional power upon which they proceed, are to be considered.

Without a license, no one can sell, in a single instance, spirits to be used on the premises of the vendor, and no one can sell them for the purpose of being carried away, in a less quantity than twenty-eight gallons, which must be bought and removed all at one time.

The result, therefore, is, that without a license no one can sell spirits to be used, or to be carried away for use, since no one purchases for use so large a quantity as twenty-eight gallons to be carried away at one time.

Without a license, therefore, no one can sell at all by retail; and the retail trade in spirits, the sale of spirits for use, is suppressed.

2d. No one is entitled to a license, or can exact it, whatever be his character or fitness to trade.

No court or person is required to give a license. A tribunal called county commissioners, chosen by the people of the counties, may, if in its judgment the public good requires it, grant licenses; but even in such case is not required to grant them.

For the last six years none have been granted in the county of the plaintiff's residence, containing more than one hundred thousand inhabitants.

This withholding of licenses is no fraud on the Massachusetts statutes, but in perfect conformity with them.

In conformity with the law, then, all sales of spirits for use may be totally prohibited in Massachusetts.

These laws design to do just what can be legally, and without defrauding them, done under them.

They design, then, to restrain all sales of spirits for use; and they do this upon a general principle of policy, to wit: that such sales, for such purpose, by whomsoever made, are a public evil.

The difference, therefore, between them and all laws of mere policy, of quarantine, health, harbours, storage of gunpowder, and the like, is, that those laws are auxiliary to, in aid and furtherance of, cooperative with, the Congressional legislation, while these deny its policy, and thwart and restrain its operations.

These statutes do not confine themselves to providing for suitable persons, places, and modes of selling foreign spirits, so as to secure the largest amount of traffic in the most expedient and prudent manner; but they mean, substantially and effectually, to put an end to the traffic.

The plaintiff in error, therefore, will discuss these laws, as if they did, in terms, prohibit all persons who buy of importers from reselling, since they do substantially so operate; and they assert a principle of power broad enough to go to that extent.

The general question, therefore, is this. Is a State law, prohibiting purchasers of spirits from importers to resell, on the ground that, for moral, medical, economical, or other reasons, the public good will not be promoted by such sale, repugnant to the acts of Congress, and to treaties authorizing importations of such spirits?

These sales were in 1841, and subsequent. The acts of Congress are, 1832, ch. 227, 4 Statutes at Large, 583; 1833, ch. 55, 4 ibid. 629; 4 ibid. 25; 3 ibid. 310.

These authorize importations in casks of fifteen gallons.

2d. What is the extent of the effect of an act of Congress authorizing importations?

1. Regarded as a license to, or contract with, the importer, communicating a right to sell, according to the view in Brown v. Maryland, 447, what is its extent?

The plaintiff contends that it would be repugnant to, and in fraud of, the license, either to ordain that no one shall buy of the importer, or to ordain that no one, having bought, shall resell, because either prohibition would totally defeat the license itself. The license is a license to carry the article to market, to trade in it, to have access with it to the consuming capacity of the country.

The grounds on which Congress legislate, in passing such an act, and the just expectations and reasonings of the importer, prove this.

The interception of the article in the hands of the first buyer, on its way to a market, excludes it from market, and shuts the importer from the country as really as if he were prohibited to sell.

2. Regarded as Congressional legislation, an act authorizing importations of spirits is a legislative determination that the foreign article may properly, and shall, enter into the consumption of the country, and be sold in the interior market thereof; and the Massachusetts statutes are intended to contravene that determination, upon a directly opposite view of policy.

3. Congress has the constitutional power to determine, on general grounds of policy, what foreign articles shall enter into the consumption of the country, and be sold in the domestic market, and to what extent; and it exercises this power by an act laying duties. It determines that all which can be introduced and sold under such a rate of duties shall be, and the power of the States is merely auxiliary, coöperative, and regulative, securing proper persons by whom the traffic shall be conducted, but not discountenancing and discouraging the traffic itself. That power these statutes transcend.

It may be proper, also, in this connection, to reprint the abstract of the argument of Mr. Hallett, upon the same side, to show the reasons given for the doctrine sustained by the counsel for the plaintiff in error. Mr. Hallett's abstract was as follows: —

Are the laws of Massachusetts concerning the sale of imported wines and spirits constitutional and valid?

We contend they are not, because, —

1. No State can prohibit, by wholesale or retail, the sale of merchandise authorized by a valid law of Congress, or by treaties, to be imported into its markets; the retail sale being as indispensable to the object of importation, viz. use and consumption, as the wholesale.

2. The laws of the United States nowhere recognize any distinction between the wholesale and retail of imported merchandise, as connected with the right of the importer to introduce such merchandise, for use and consumption, into the markets of the United States.

3. Every concurrent or other power in a State is subject in its exercise to this limitation, that in the event of collision, the law of the State must yield to the law of Congress, constitutionally passed. New York v. Miln, 11 Peters, 102; Commonwealth v. Kimball, 24 Pick. 359.

4. If Congress has the power to regulate a subject-matter, a State cannot interfere to oppose or impede such regulation. The general government, though limited, is supreme as to those objects over which it has power. Martin v. Hunter, 1 Wheat. 304; Cohens v. Virginia, 6 Wheat. 384; Prigg v. Pennsylvania, 16 Peters, 539.

5. The commerce which Congress may regulate is something more than traffic. It is every species of commercial intercourse between the United States and foreign nations, and among the several States. "These words [regulate commerce] comprehend every species of commercial intercourse between the United States and foreign nations. No sort of trade can be carried on between this country and another to which this power does not extend." Gibbons v. Ogden, 9 Wheat. 189, 193, 194.

6. The exercise of the power of a State to regulate its internal commerce must not conflict with, and cannot control; the power of Congress to regulate foreign commerce, and commerce among the States. The internal commerce on which a State can act, independent of a law of Congress affecting the same, must be trade, or dealing in articles not connected with the operation of a valid law of the United States. It must be "completely internal," local, and not connected with the United States government, in the exercise of its power to regulate commerce, and to lay and collect duties and imposts.

7. "The power [of the United States] to regulate commerce, must not terminate at the boundaries of the State, but must enter its interior. The power is coextensive with the subject on which it acts." Brown v. Maryland, 12 Wheat. 446.

8. If a State, under the power of regulating her internal commerce, can exclusively regulate or control (to the extent of prohibition) commerce in imported merchandise, up to her boundaries, or the instant it shall pass, in bulk, from the hands of the importer, she can thereby exclude foreign commerce, and deny her markets to foreign nations.

9. If a State has no such power of prohibition, she cannot empower her officers or agents to do what she cannot do herself, viz., prohibit internal commerce in foreign merchandise. Suppose the legislature of Massachusetts, instead of conferring this power of prohibition upon county commissioners, to be exercised in their uncontrolled discretion, should retain it, to be exercised by herself; it would be unlawful legislation, and collision of a State law with a law of the United States.

10. The laws of Massachusetts, of which the plaintiff in error complains as unconstitutional, are, in respect to commerce and trade in this description of imported merchandise, a law of prohibition, because they assume to provide for licenses to persons to sell, and then empower the agents they create to refuse all such licenses, without cause; and it punishes all sellers in quantities less than twenty-eight gallons, without such license; and, in fact, no such license can be obtained. Both the intent and the operation of these laws are, therefore, prohibitory.

11. If it be said that it depends upon the administration of this law, whether it be constitutional or not, and therefore a law may be constitutional though its operation may be unconstitutional, the answer is, that a State cannot so frame a law as that under one sort of administration it is constitutional, and under another unconstitutional, and both operations be lawful, and thus the law be valid.

12. If a law of a State provides for and contemplates collision with a law of the United States, the former is invalid, and must yield whenever the collision arises.

13. The counsel for the Commonwealth of Massachusetts admits that the law complained of becomes prohibitory against this description of imported merchandise, whenever the public sentiment of a majority electing the county commissioners requires prohibition. If this be valid State legislation, then the power of Congress to regulate commerce in imported merchandise is subordinate to the disposition of the legislature of a State to exclude it from their markets.

14. The laws of Congress make no distinction between commerce in imported wines and spirits and other foreign merchandise. A recognition of the power of a State to exclude the first from its markets, whenever public sentiment requires it, must embrace the like power in respect to all other descriptions of imports, whenever the public sentiment in a State demands its exercise.

15. There is no preëminence given to that class of State legislation denominated police laws over other laws, whenever they come in collision with the lawful exercise of a power of Congress; and in such case the latter, by the terms of the constitution, shall be the supreme law of the land.

16. The law of Massachusetts in question is not a health law against contagion or infection in the article imported; it aims to keep it out of the hands of the consumer, on the ground of its abuse in excess of use. Health laws may exclude all such portions or cargoes of an article of commerce as are infectious; but they cannot exclude a whole class of imported merchandise, on the ground that infected portions or cargoes of it have been, or may be, imported.

17. Infected articles of commerce may rightfully be excluded from passing the boundary of a State, and reaching the hands of the importer, as well as the consumer. But a State cannot (under Brown v. Maryland, 12 Wheat.) exclude imported wines and spirits, or any sound article of commerce, from reaching the importer; and this is an obvious distinction between health laws and a law of prohibition to cut off the transfer of a sound article from the importer to the consumer.

18. The point where regulation ceases and prohibition begins is the point of collision, and of unconstitutional operation, of a State law affecting foreign commerce. In this respect a State law becomes a law of prohibition when it punishes all who sell without license, and confers the whole power of licensing on agents, with express authority to withhold all licenses.

19. In any and all cases, the power to deny sale includes the power to prohibit importation; and the question of power is the same, whether exercised directly by the legislature, or indirectly by its agents thereto authorized.

20. The operation of the law of Massachusetts on foreign wines and spirits deprives imported articles of their vendible quality. This such law cannot rightfully do, for the whole course of legislation by Congress shows that the right to sell is connected with the payment of duties, and the right to sell must extend beyond the importer, or it is an inoperative right.

21. The argument on the other side is, that if the power to regulate commerce can follow the imported article, with its vendible quality attached, into a State, it can compel consumption by the citizens of that State. This confounds the mere commercial right to offer for sale with the power to force purchase. All the law of Congress requires in the markets of the United States is a right to sell and buy; and when this right ceases, commerce ceases.

22. The counsel on the other side further argues, that the State has a right to deny this commerce, whenever her citizens do not wish to deal in it. But if they do not desire to purchase, there would be no need of a prohibition of sale. The law of prohibition proceeds on the ground, that if commerce in this article were not denied, there would be such commerce; and therefore it directly interferes with the law of Congress regulating that commerce.

23. A State may pass all such laws as she pleases for the safety, health, or morals of her people, and may use whatever means she may think proper to that end, subject only to this limitation, that in the event of collision with a law of Congress, the State must yield. Commonwealth v. Kimball, 24 Pick. 363.

24. Now, Congress, by law and by treaties, authorizes foreign commerce with the States in wines and spirits. By the treaty of indemnity with France, in 1832, the wines of France were "admitted to consumption in the markets of the United States." The law of Massachusetts shuts her markets against the fair and just operation of these laws and treaties of the United States, and renders them so far inoperative.

25. The general view as to the prohibitory provisions of the laws of Massachusetts in this matter, taken together, is, that it is a blending of two powers to be exercised at pleasure under the statute: one legitimate, — to regulate; the other unconstitutional, — to prohibit, whenever the public sentiment in the State comes up to that point.

26. Massachusetts assumes to abolish foreign commerce in her markets in imported spirits, on the ground of thereby preserving the health and morals of the people; but at the same time, in her internal commerce and exports, she encourages, without tax or excise, an annual manufacture by her citizens of 5,177,910 gallons of domestic spirits, which is one eighth part of the whole product of the United States in spirits distilled from molasses and grain.

27. Congress has not changed its policy in this respect, but Massachusetts has changed hers, in opposition to the laws of Congress. Until 1837, the laws of Massachusetts uniformly provided for the sale and consumption of wines and ardent spirits imported into her markets. The act of 1786, ch. 68 (1 Mass. Laws, 297), was in force with additional acts till 1832. By section fifteen, the general sessions were not to license more persons in any town than they shall judge necessary for refreshment of travellers, or are necessary for the public good, by which was meant the public convenience. Act of 1792, ch. 25, p. 417, required all persons to be licensed, on satisfactory evidence of fitness, and that such license will be subservient to the public good. Additional Acts, 1807, ch. 127; 1816; ch. 112; 1818, ch. 65.

The act of 1832, ch. 166, reduced the maximum to ten gallons, and provided for a new class, victuallers. The commissioners to license, as innholders and retailers, as many applicants as they shall decide the public good may require. The law now in force (Rev. Stat., ch. 47, 1835) altered this provision to power to county commissioners to license as many persons as they shall think the public good may require.

Then followed the declaratory act of 1837, ch. 242, that the commissioners might withhold all licenses in their discretion.

The act of 1838, ch. 157 (commonly called The Fifteen-gallon Law), made penal all sales of spirituous liquors less than fifteen gallons; licensed only apothecaries to sell for medicine and the arts, and punished the sale by them, if to be drank; and repealed all laws inconsistent with this act.

This brought up the question of prohibition. The act was contested in the courts of Massachusetts as unconstitutional, but was not decided there before it was repealed, in 1840, without any reservations. The Supreme Court of that State thereupon decided, in 1840, that the repeal revived the preëxisting laws, chap. 47 of Rev. Stat., and chap. 242 of 1837 (Commonwealth v. Churchill, 2 Metcalf, 118). Since then no licenses have been granted. The plaintiff's first sale in the case at bar was in May, 1841, and this case has been brought up on writ of error as soon as the laws of Massachusetts and the decisions of her highest court have established prohibition as the law of that State.

28. The law of Massachusetts comes in collision with the power of Congress over revenue, which is a supreme power, used as a substitute for taxation. With this view, the constitution requires that "all duties shall be uniform throughout the United States."

If Massachusetts, by her laws, can exclude one or more articles of import, she pays so much less revenue than other States that admit all. This makes the operation unequal so far, arising from the legislation of Massachusetts adverse to the power of Congress to collect revenue in all the State. Suppose the duty on foreign wines and spirits to be one fourteenth part of all the revenue, the States can cut that off, if this legislation is valid; and, by the same rule, all other sources to collect revenue are wholly destroyed.

29. So of the treaty-making power. The United States has power to reciprocate its markets with the markets of foreign nations; but if a State can shut its markets against any one or more of the articles admitted, by denying sale, the United States cannot in good faith perform any such reciprocal engagement.

30. The laws of Massachusetts, therefore, which, by their provisions, and their operation in conformity to such provisions, prohibit all commerce in wines and spirits in quantities under twenty-eight gallons, are repugnant to the constitution and laws of the United States, —

1st. In the power to regulate foreign commerce.

2d. In the power to collect revenue on imports into the several States.

3d. In the equal apportionment of taxes and duties in all the States; and,

4th. In the power to make treaties.

Mr. Davis, for the State. The following is a sketch of the argument, and shows the positions assumed and maintained by him for the defendant in error.

The broad ground assumed by the plaintiff's counsel is, that the statute of Massachusetts is unconstitutional, because it "prohibits, restrains, controls, or prevents the sale of imported wines and spirituous liquors, by retail or otherwise, in the State."

To make the policy of Massachusetts, in restraining an indiscriminate traffic in intoxicating drinks, intelligible, we must understand its history, and the state and condition of things when the constitution of the United States was made.

The court has often declared, that in a complicated system, which establishes two governments over the same people, it is necessary, in considering questions of power, to look into contemporaneous facts; that the objects designed to be secured by the federal constitution may be understood, and, if possible, carried into effect.

The context of the instrument is not alone to be regarded, but the whole machinery of government; and care must be taken, in carrying out the fundamental principles, that the purpose of the framers is not frustrated.

As the power of Massachusetts to make laws restraining traffic in intoxicating drinks is denied, I shall, as a preliminary step, briefly state the history of her legislation upon this subject, and point out the consequences which will follow if this doctrine is maintained.

The law of Massachusetts was revised in 1836; but acts similar in principle, and nearly so in detail, have existed for more than two centuries, and been enforced by her judicial tribunals. Ancient Charters, 135, 314, 433; Laws of Mass., 1786, ch. 68; Revised Statutes, ch. 47, and several other statutes.

The law, substantially as it now is, forbidding a sale without a license in less quantities than twenty-eight gallons, was made in 1786, and was in force when the federal constitution was ratified, and has, with immaterial modifications, remained so from that time to this.

From thence till this time, the revenue system of the United States has been in force; and the laws which are now supposed to conflict have during all that time worked harmoniously together.

After a lapse of fifty-six years, it is now first discovered that the State is trenching upon the power of the United States, and impairing the revenue by restraining the sale of imported wines and spirits.

Let it be remembered, however, that the United States do not and have not complained of any wrong done by the State; nor has any question ever been agitated in that quarter, in regard to the diminution of the revenue; which makes it quite apparent that no serious inconvenience is felt.

While, however, I admit the right of the plaintiff to appeal to this court, I must observe, that, although this long acquiescence may not prove the law of the State to be constitutional, it establishes the fact that it has produced no noticeable or sensible influence upon the revenue or the revenue power of the United States. It would seem, also, to be a clear indication that the federal government is not hostile to the policy of Massachusetts, or anxious to promote drinking to increase the revenue.

It also proves, that the State has at all times during its organization as a body politic considered restraint in the traffic of spirits as essential to the public welfare.

But the State is not an exception to other communities in this respect, but has followed out a principle which has been maintained and enforced through all ages among the civilized nations.

Mr. Davis then proceeded to prove, from historical authority, that the ancient Egyptians, the Greeks, the Romans, and the more Eastern nations did, through most periods of their existence, maintain rigid and severe restrictions upon the use of wine, and that excessive indulgence at all times was esteemed criminal.

He referred also to China, and the bordering nations, where abstinence from intoxicating drinks was enforced as a religious duty. He referred also to the Western nations of Europe, whose opinions and laws were equally condemnatory of excessive indulgence, and remarked that but one opinion prevailed through all ages.

He said, that the common law of England and this country frowned upon intemperance, and held it to be without apology; for, while mental alienation by the providence of God was a justification of crime, when it occurred by drink it was not; but the party was held answerable, because his insanity was occasioned by his own folly.

Even in the new settlement of Oregon, made up of people congregated from different parts of the earth, the sale and manufacture of spirits was forbidden by law.

But there was no occasion to multiply proofs of public opinion, for intemperance was everywhere deprecated and lamented, and had almost everywhere fallen under the condemnation of legal restraint, by enactments for that purpose, or by taxation. Experience had everywhere proved that there was a proneness in the human appetite to excess which requires control.

It should be observed, that the ancients were unacquainted with alcohol, and used wine in its simplest and most unobjectionable forms; while upon the moderns the double duty is devolved of contending against the demoralizing effects of both.

The train of evils which mark the progress of intemperance is too obvious to require comment. It brings with it degradation of character, impairs the moral and physical energies, wastes the health, increases the number of paupers and criminals, undermines the morals, and sinks its victims to the lowest depths of vice and profligacy.

In proof of this, there were in New York, in 1845, 26,114 paupers, 6,245 of whom were reduced to that condition by intemperance. In the same year there were in Massachusetts 14,308, and 6,740 were addicted to excessive drinking.

In the Singsing penitentiary, in 1845, there were 861 convicts, and 504 of these had been intemperate. The returns of other poor-houses and penitentiaries are equally startling.

These facts prove that intemperance is an evil of all-pervading magnitude, and that all ages and communities have set upon it the seal of disapprobation.

Such being its character, and such the evils which it engenders, the Colony, the Province, and the State of Massachusetts held it to be an imperative duty to check its progress by suitable restraint, and to promote sobriety and temperance by wholesome regulations.

Her law stood upon her statute-book when the federal constitution was made, and there it still remains.

No argument can make the fact clearer, that she has at all times esteemed legal restraint as indispensable to the public welfare.

Suppose, then, that the law of the State should be held unconstitutional, and she should be denied the power to legislate upon the subject; what consequences would follow?

It will appear in the progress of this inquiry, that the United States have no power to regulate the traffic in wines and spirits within the States; and if the State has no such power, then the right is abrogated.

Is not such a result hostile to the intent of all parties to the constitution? The framers did not intend it, and the States could not have contemplated it.

The United States are as much interested in the preservation of life, health, and morals as the States can be, and the motive to avert pauperism, crime, and profligacy must, with them, be equally persuasive. The policy and duty of the federal and State governments must obviously be concurrent, and cannot be arrayed in hostile attitude without violence to both.

Neither the United States, nor the State of Massachusetts, could, therefore, when making the constitution, have anticipated the abrogation of this power; and if it has been done, it is contrary to the intent of the parties. This is inferable, not only from what has been stated, but from the fact that these parties have moved on in their respective spheres for fifty-six years, in the exercise of their respective claims to power, without conflict and without entertaining a suspicion that the State has been enforcing laws without authority and in violation of right.

It would be a singular result, and one to be deprecated, if, in giving construction to the constitution, the court should arrive at a conclusion injurious both to the United States and the States; a result which both would deplore as hostile to their best interests, and subversive of the purposes which they had in view when they entered into the constitutional compact.

Nothing but a commanding necessity can sanction such a step, and it never will be taken unless under an imperiously pressing sense of duty.

With such facts and circumstances as these surrounding it, we come to the consideration of the question, whether the law of Massachusetts is constitutional.

The plaintiff in error assumes the affirmative, and must establish the fact that it is incompatible with, or repugnant to, the constitution and laws of the United States.

It will not be denied that the federal government has no powers except such as are granted to it and are enumerated in the constitution.

On the other hand, it is equally clear and indisputable, that the States retain in themselves all powers not so granted or prohibited by the constitution. This is an irresistible inference; but the States made it doubly certain, by declaring in an amendment the fact, in the most clear and explicit terms.

While, therefore, the United States hold the powers which are granted, the States hold those which are not granted or prohibited, and both are fully sanctioned and maintained by the constitution.

The plaintiff, therefore, must maintain that Massachusetts has, in making her law, exercised a power not reserved to her.

He makes it a question concerning commerce. He contends that the law, in effect, regulates foreign trade, the power to do which is confided to the United States.

The ground assumed is, that the United States authorize importations, and levy upon them a duty for revenue; that the right to sell is incident to the right to import, and cannot be controlled or regulated by the State in such a manner as to diminish the sales or to impair the revenue.

The constitution declares, that Congress has power "to regulate commerce with foreign nations, and among the several States, and with the Indian tribes."

These words give all the authority which the United States have over commerce.

The power is manifestly limited to commerce with foreign nations, commerce among the States, and commerce with the Indian tribes. The grant covers these three kinds of commerce, and nothing more.

In this case, commerce with foreign nations alone is to be considered. The domestic commerce is necessarily excluded; for it is neither foreign, nor is it trade among the States, nor with the Indian tribes.

This inference is not only apparent from the language of the constitution, but is fully sustained by authority.

In Gibbons v. Ogden, 9 Wheat. 203, the court, in commenting on inspection laws, employ the following language: — "They form a portion of that immense mass of legislation which embraces every thing within the territory of a State, not surrendered to the general government; all which can be most advantageously exercised by the States themselves. Inspection laws, quarantine laws, health laws of every description, as well as laws for regulating the internal commerce of a State, are component parts of this mass. . . . . . No direct general power over these objects is granted to Congress; and consequently they remain subject to State legislation."

Again, in the same case the court speak of the power to regulate the internal trade and commerce of a State as an acknowledged power of the State.

It is, therefore, judicially settled, that the power to regulate the internal commerce of a State is reserved to and resides in it.

Such being the partition of powers between the States and the United States, I come to the inquiry, What is the character of the law of Massachusetts? Upon what basis does it stand, and from what power or right in the State is it derived? And I shall contend that it is a regulation of the internal commerce of the State, having for its object the preservation of order, morals, and health, and intended to discourage intemperance and to promote sobriety. And such being its general characteristics, I shall also contend further, that it falls within that class of laws generally called police regulations.

The trade intended to be regulated is completely internal, and spread over the whole territory of the State. That the regulation of such a commerce belongs to the State is evident, not only from the authority cited, but from the language of the court at page 195 of the same case. "The completely internal commerce of a State," says Chief Justice Marshall, "then, may be considered as reserved for the State itself."

The State has furthermore a right to provide for the health of its citizens by police regulations. In Gibbons v. Ogden, 9 Wheat. 205, the court say of quarantine and health laws, — "They are considered as flowing from the acknowledged power of the State to provide for the health of its citizens"; again, at page 208, "the acknowledged power of a State to regulate its police, its domestic trade, and to govern its own citizens," is spoken of as unquestioned.

It may, then, be assumed on authority which does not admit of doubt, that a State has a right to regulate its internal commerce, and to provide for the health and government of its citizens by suitable laws. That such regulations are considered by this court to be police laws will not be doubted.

These propositions are sustained by high authority. The State possesses the undeniable right to regulate its internal trade, and to maintain municipal or police regulations to protect and promote the welfare of the people.

That a law restraining an indiscriminate traffic in wines and spirits, and designed to protect life and health by promoting temperance and sobriety, is a police law cannot be questioned.

The law of Massachusetts being, then, a measure relating to a trade completely internal, and a police regulation, is, in all its aspects, founded on an acknowledged power which is vested in the State by the provisions of the constitution.

This being the highest source of authority, it would seem sufficiently to justify and maintain the law.

But it is contended that even this foundation may fail a State in cases of conflict; for the law of the United States is supreme, and must, in such cases, prevail against the admitted right of a State.

Our system is obviously complicated, because the federal and State governments extend over the same territory and people, and act upon the same persons and things. For example, foreign commerce is destined to become internal, and internal to become foreign. This flux and reflux from jurisdiction to jurisdiction brings the laws into contact, and the jurisdictions impinge upon each other.

This opens the question, Which in such cases shall prevail? The answer has been, that federal power in such cases is paramount and supreme. This is sometimes said to be an axiom to which State authority must bow in submission. But if we admit the authority, the question still remains, How far does this implied supremacy extend over the acknowledged powers of the States? Is it unlimited, and must a State yield to its touch whenever felt? No one, I believe, will urge the doctrine to this extremity.

The decisions of this tribunal will establish the fact, that the supremacy of federal power in cases of conflict has boundaries and limits, and that the action of State laws derived from powers reserved to the States is never unconstitutional until it becomes incompatible with, or repugnant to, the federal laws.

But what is incompatibility? What is repugnancy? This inquiry often presents perplexing considerations, because no fixed, determinate rule can be laid down by which cases can be tested; but each case, as it comes up, is left to be decided by the facts which surround it. Whenever State power touches that of the United States, whoever may profit by it is anxious to make out a case of incompatibility or repugnancy, and thus every seeming conflict is liable to become a matter of judicial investigation; and there is a constant disposition manifested to expand the power of the general government, and to contract that of the States.

We are not, however, without authority which throws no inconsiderable light on this inquiry. The learned commentator upon the constitution, 1 Com. 432, after an examination of all the authorities, sums up the result: — "In cases of implied limitations or prohibitions of power [and this is one] it is not sufficient to show a possible or potential inconvenience. There must be a plain incompatibility, a direct repugnancy, or an extreme inconvenience, leading irresistibly to the same conclusion."

Under this rule a State may exercise its power in any way or form, and to any extent, if its action upon federal power does not amount to manifest incompatibility or direct repugnancy. The fact of incompatibility or repugnancy must not be equivocal, but clear and certain. In cases of incompatibility, it must be apparent that the laws of the United States and a State supposed to be in conflict cannot stand together, or be reconciled or harmonized with each other. The whole doctrine of repugnancy and incompatibility is confined within these narrow limits. It is applied, in fact, only to cases where the power of a State so acts upon a power of the United States as substantially to subvert or defeat it. In such cases only has the supremacy of the federal law been maintained over constitutional State power. The rule clearly implies, in all cases of doubt, that the power of the State is to prevail against this implied right of supremacy. Even potential inconvenience is not to be regarded, but must be tolerated as long as it falls short of incompatibility or repugnancy.

It requires but little consideration of the subject to justify these cautious limits of power; for if the laws of the State must recede before those of the United States whenever they come into contact, it is manifest that State power would be in imminent danger of being obliterated; for, as State power yields, federal power must follow and press upon it. The dangers which beset the exercise of power by sovereignties whose limits of authority are not ascertainable cannot be more forcibly described than in the language of the late chief justice, in McCulloch v. Maryland, 4 Wheat. 316, 430. After stating the grounds upon which the decision rested, the learned judge says: — "We are relieved, as we ought to be, from clashing sovereignty; from interfering powers; from repugnancy between a right in one government to pull down what there is an acknowledged right in another to build up; from the incompatibility of a right in one government to destroy what there is a right in another to preserve; — we are not driven to the perplexing inquiry, so unfit for the judicial department, what degree of taxation is the legitimate use, and what degree the abuse, of power." The court congratulated itself upon having discovered the limits of sovereignty without resorting to the implied right of supremacy on the part of the United States, which necessarily involved the most conflicting and dangerous considerations.

This case is but one among the many proofs given by this court of a uniform and anxious desire to give full and free scope to the powers of the respective governments, and to harmonize, if possible, their action, without asserting the supreme authority of the federal constitution over the acknowledged powers of the States. This can never be done when it subverts the lawful power of the States without creating alarm, and impairing the stability of the Union.

The cautious and almost reluctant manner in which this court have applied this doctrine of supremacy over acknowledged State power is manifest in many of its decisions, which prove incontestably its disposition to avoid such conflict if possible.

It has already been shown from Gibbons v. Ogden, "that inspection laws, quarantine laws, health laws of every description, as well as laws for regulating the internal commerce of a State," originate from powers which are reserved to the States. What is the character of those laws, and how are they executed? The answer will show how far the power of a State may be carried without incompatibility or repugnancy.

They deal with foreign commerce, asserting, as will appear by their provisions, absolute control over it for certain purposes which are connected with the public welfare and safety.

The inspection laws authorize the detention and examination of merchandise, and the imposition of marks which denote its true character, and often affect its value.

Quarantine laws direct possession to be taken of vessels arriving, and require them, with their crews, passengers, and cargoes, to be detained, and forbid intercourse with the shore

The health laws carry with them a similar authority, and provide not only for detention, but for the purification, and, if necessary, the destruction of the cargo.

In Brown v. Maryland, 12 Wheat. 443, the court observe, "that the power to direct the removal of gunpowder is a branch of the police power which unquestionably remains and ought to remain with the States." They add, also, that "the removal or destruction of infectious or unsound articles is undoubtedly a branch of the same power."

These laws interfere directly with foreign commerce, asserting a right to control men, vessels, and cargoes, before a voyage is completed.

Harbour laws, ballast laws, c., are of a similar character, and hence it has been supposed that they are regulations of foreign commerce.

But this court repel this conclusion, and maintain their constitutionality, because they are police regulations of the States, and derived from a right reserved to make and execute such laws; and are not, therefore, regulations of foreign commerce, though, for the purposes of protecting life, health, and property, they necessarily deal with it. The court go farther, and also maintain, that such laws are not incompatible with or repugnant to the laws of the United States which relate to foreign commerce, and therefore no objection exists to the exercise of such power by the States over foreign commerce.

It is manifest from these authorities, that State power, and especially police power, may be exercised upon matters within the jurisdiction and under the control of the United States without incompatibility or repugnance. The protection of life, health, and property demand it. The right to do it is acknowledged, and cannot be questioned, unless its exercise defeats or subverts the power of the United States; then, and in such cases only, it is viewed as incompatible or repugnant.

This brings the doctrine of repugnancy and incompatibility, when asserted against the rightful power of a State, into narrow limits; and it is believed that no case has yet occurred before this court, in which the power of the United States, because it is supreme, has been extended by implication so as to defeat or overrule the acknowledged authority of a State, unless concurrent powers constitute an exception.

It is further manifest, that the right of a State to make police laws is unquestioned, because, as the court declare, it is among the reserved rights. This power, I have shown, has been and is exercised in a great variety of ways, and in many forms, over foreign commerce.

It is obvious, therefore, that it constitutes the boundaries of sovereignty, and is paramount to the power of the United States in all cases, except where it defeats or subverts the granted powers of the United States.

It is further obvious, that the court will not consider a State law, made in the exercise of lawful authority, and in the exercise of a power belonging to the State, a law regulating foreign commerce, though it may act upon and influence such commerce.

It is also obvious, that the court has never denied, but, on the other hand, has always admitted, the right of a State to make police regulations, to protect life, health, and the property of the citizens, and the right to extend this protection against the dangers incident to foreign commerce has uniformly been distinctly recognized.

It can neither be admitted nor maintained that the United States, under a general power to regulate foreign commerce, has a right, without restraint, and in defiance of State powers, to import disease and pestilence, to fill the country with infamous persons, or to debauch the public morals. Such is not the design of the constitution; and if such a right shall be successfully asserted, it will soon prove that the federal and State governments cannot exist together.

Such are the restraints which oppose the extension of federal power, in cases of apparent conflict, on the ground that it is supreme.

A careful examination of the many decisions will prove that the court has anxiously studied to fix, as far as circumstances will permit, definite boundaries to sovereignty, leaving them to depend as little as possible upon questions of incompatibility or repugnancy.

The police laws of the State have uniformly been maintained, on the ground that the States have a right to make them, and this right is not to be questioned, although in the exercise of it the laws and power of the United States are and must be affected, or the remedy against alarming evils be incomplete. It seems to me that the court have practically, and for the best of reasons, placed such laws on the ground that they emanate from exclusive and independent powers enjoyed by the States.

This position has been gradually approached, with a watchful solicitude at every step taken in advance.

In New York v. Miln, 11 Peters, 102, a reëxamination of the authorities was made, and the grounds of the opinion there delivered are stated with great clearness (p. 139). After discussing the principles so ably laid down in Gibbons v. Ogden, the learned judge says: — "We do not place our opinion upon this ground. We choose rather to plant ourselves on what we consider impregnable positions. They are these, that a State has the same undeniable and unlimited jurisdiction over all persons and things within its territorial limits as any foreign nation, where that jurisdiction is not surrendered or restrained by the constitution of the United States; that, by virtue of this, it is not only the right but the bounden and solemn duty of a State to advance the happiness, the safety, and prosperity of its people, and to provide for its general welfare by any and every act of legislation which it may deem conducive to these ends, where the power over the particular subject, or the manner of its exercise, is not surrendered or restrained in the manner just stated; that all those powers which relate to merely municipal legislation, or what may perhaps be more properly called internal police, are not thus surrendered or restrained; and that consequently, in relation to these, the authority of a State is complete, unqualified, and exclusive."

This authority defines the great question of boundary between the sovereignties with an accurracy which cannot be mistaken, so far as regards police laws.

The powers not conceded or prohibited by the constitution remain in the States unchanged, unaltered, and unimpaired, and as fully in force as if no constitution had been made.

None of those powers which relate to municipal legislation or internal police have been surrendered or restrained, but are complete, unqualified, and exclusive.

If they are complete, the State has the whole and the sole enjoyment.

If they are unqualified, they remain as they were, unaltered and unchanged.

If they are exclusive, there can be no participation in them by another.

The inference is irresistible, that such powers are independent of and paramount to the constitution of the United States, and therefore not subject to any supreme power of the federal government in cases of conflict.

This is but carrying out the provisions of the instrument, as they apparently stand.

It is manifest, that the laws of the two governments must meet and mix, because the jurisdictions commingle, and the question is, Did not the framers of the constitution intend it should be so?

When they made that instrument, and gave to the United States the control over foreign commerce, and reserved to the States the police powers, they knew that life and health and property in the States must be provided for; and they knew then, as well as we do now, that it could not be done without an interference with foreign commerce. Did they not intend, then, when they granted this power to the United States, that it should be held and enjoyed subject to the exercise of these reserved powers in the States?

Such at least is the effect of this decision, if language has any meaning; and this case does little more than carry out the principles which had been previously maintained in practice.

The police laws had in fact everywhere been maintained against the supreme power of the United States, notwithstanding this obvious interference.

The pressure of this principle of supremacy was forced upon the States with such zeal, and the supposed cases of incompatibility became so frequent, that the exigencies of the times demanded a positive rule to the extent that it could be safely established.

The step was taken eleven years ago, and what inconvenience has been experienced? In what has the power of the United States been impaired or disturbed? Who has sensibly felt any change? Whose interests have not been well provided for, and safely protected? Much has been said and sung by the theorists; but the laws have been well harmonized, and the public have been well satisfied.

In regard to constitutional principle, this case is decisive of the one under consideration, as it admits the authority of a State to maintain police regulations in regard to its internal affairs, whatever may be their effect or influence upon the laws of the United States.

All this is conceded when the power of the State is declared to be complete, unqualified, and exclusive. Commonwealth v. Kimball, 24 Pick. 365; Pierce in error v. New Hampshire, Law Reporter, Sept. 1845.

I have thus far, in speaking of constitutional power, assumed that the law of Massachusetts is a police measure, made in good faith, to regulate the traffic in intoxicating drinks.

This has, however, been questioned, on the supposition that it is, in fact, a regulation of foreign commerce.

It becomes necessary to look into its provisions, to ascertain whether they are adapted to the professed object, or designed to cover up a specious fraud.

The act requires all retailers, who sell in less quantities than twenty-eight gallons at a time, to first obtain a license from the proper authority.

The retailers are tavern-keepers, and small grocers, living wherever there is travel and population.

The design of the law is manifestly to prevent tippling and disorder, by promoting temperance and sobriety; and, whether it be a regulation of trade or police, or both, relates to affairs completely internal.

Is this a suitable matter to engage legislative attention? Does such a traffic demand restraint, or does the legislature employ it as a pretext to regulate foreign commerce?

I have already dwelt sufficiently on this point, and have proved that intemperance is everywhere deprecated and deplored, that the world has raised its voice in remonstrance against an indiscriminate traffic in wines and spirits, and it seems to me that if health, morals, usefulness, and respectability are worthy of public consideration, and merit protection against an insidious foe, the legislature would be criminally guilty in wholly disregarding a matter of such obvious importance; and that the exercise of the power needs no justification.

But are the provisions of the law suited to the professed object? The evident end in view is to place the trade in safe and suitable hands, in the custody of those who will use without abusing it, and mitigate, instead of aggravating, the evils incident to it.

To carry this principle out, the law authorizes the county commissioners, who are elected by the people, and supposed to be an exponent of public opinion, to license as many innholders and retailers as the public good requires. Can any one desire more?

If suitable persons are to be selected, the mode is probably as unobjectionable as any which can be devised; but if no selection is to be made, as is contended, and all persons are to have a right to demand a license, a law, with such provisions, would cease to be a regulation, and had better be abolished.

Another feature of the law is, that it makes no discrimination between foreign and domestic wines and spirits, but deals with all alike. This would seem to furnish sufficient proof that it has no special reference to the importing trade, but aims at a general regulation, and is designed to promote temperance and not to regulate foreign commerce.

When these facts are taken in connection with the antiquity of the policy, no reasonable doubt can exist as to the good faith and sincerity of purpose in the legislature.

But it is objected to the law, that the commissioners may so exercise their discretion as to impair or defeat the revenue.

This argument supposes that judicial officers will abuse their authority. But it is not a question as to the manner of using power, but of right.

A discretion is reposed in all judicial tribunals, where facts are to be ascertained as the foundation of a judgment. In all such cases, the law may be perverted; but the abuse is proof of misconduct in the officer, and not of the unconstitutionality of the law.

Whether an applicant for a license is a suitable person, and whether the public good requires the grant to be made, are facts to be ascertained, which must depend upon evidence; and the questions cannot be decided without an exercise of judgment.

It is difficult to comprehend how a selection of suitable persons, or of suitable places, can be made, without the exercise of so much discretion as such a decision implies. There is, in fact, no intermediate ground between this and indiscriminate traffic.

But it is further objected to this system, that its whole tendency is to reduce consumption, and to diminish the revenue.

The State has a right to regulate its internal trade, and to maintain police laws. No condition is annexed to this right, which requires the State to exercise the power without impairing the revenue upon imports. The law may have some remote effect on the revenue; but what law or principle of the constitution forbids it? There can be no repugnancy or incompatibility till the powers of the United States to raise revenue is substantially defeated.

Of such a state of things there is no proof. On the contrary, the license laws have been in operation for fifty-six years with the revenue system, and no sensible or noticeable effect has been produced; not enough even to make it a topic of discussion.

If the whole revenue from this source were dried up, it could have little tendency to defeat or control the financial power of the United States, which is too broad and ample in resources to be materially affected by any such legislation.

But the argument proves too much, — it denies to a State the right to make a law which tends to impair the revenue of the United States.

The right of taxation is concurrent, and may be and is exercised by both governments upon the same persons and property. This is an undeniable right in a State, and yet it is manifest that it cannot be exercised without impairing the resources of the United States.

Slaves are taxable property, and cannot be emancipated without diminishing the resources of revenue; but will it be contended that a law of emancipation is unconstitutional for that cause?

So, too, laws which establish market-days, and forbid sales upon the Sabbath, have a tendency to restrain indiscriminate traffic.

Without, however, pursuing this reasoning, which might be easily extended, I deny that a diminution in the consumption of wines and spirits raises any presumption that the general revenue is impaired by the process. On the contrary, my belief is, that, if the facts were to undergo the severest scrutiny, it would turn out quite otherwise. It has never been maintained that a free use of wines and spirits has any tendency to promote public prosperity, nor is it denied that an excessive use is manifestly prejudicial. There can be no doubt, that where abstinence or severe temperance prevails accumulation is increased and the means of subsistence enlarged. These ordinarily go to support existence, and, creating a greater expenditure in the necessaries and comforts of life, contribute in other forms to the revenue, giving a gain instead of a loss.

But it is urged that the commissioners may press their powers so far as to exclude consumption; and if they should, the revenue would probably suffer in no respect, as the general prosperity would be improved.

But, aside from this consideration, I apprehend there is no objection to such a step. Police laws may be carried to any extent which the public welfare demands. If the health, the morals, and the welfare of the public demand the exclusion of an evil, there is a right to shut it out, regardless of revenue and of private interests. This power may and should be exercised just to the extent which the public exigency demands.

Such is the long-established practice in regard to health. If the cargo of a vessel is infected and dangerous, it is destroyed; and all revenue and private interests are sacrificed for the public safety. Gunpowder is required to be landed and stored in a way which saves life and property from jeopardy. Ballast is required to be deposited where it does no mischief to navigation. The publication, by sale or otherwise, of obscene books, prints, pictures, c., is an indictable offence.

Yet all such laws are undeniably constitutional, and are maintained as police regulations on the ground that the public health, morals, and property demand protection. The right to give this protection has never been successfully questioned; and it is evident that legal provisions in such behalf must be such as to meet the emergency. If excessive indulgence in the use of intoxicating drinks be an evil, and no one will question it, it is the right of the legislature to guard against it by wise and prudent regulations; and such regulations obviously fall within the principle which sustains the laws referred to. If the evil be such as to demand stringent provisions, reaching to exclusion, there is no constitutional objection to such legislation.

But it is further urged, and some reliance seems to be placed upon it, that the county commissioners of Essex do in fact suppress sales by refusing to grant any licenses.

If such were the fact, the presumption would be, that they have done it because their duty required it, unless the contrary is proved. In New York v. Miln, the court pronounce pauperism to be a moral pestilence; but pauperism is but one of the many plagues which follow intemperance.

In this case, however, there is no proof of such an exercise of power by the commissioners. It does not appear that the plaintiff in error, or any one else, ever applied for and was refused a license, and an alleged abuse of power cannot be presumed in the absence of all proof. Before the plaintiff can lay any foundation for just cause of complaint, he must prove that he applied, being a suitable person for such an employment, and was refused, when the public good demanded that a license should be granted.

He makes no such case on the record, but places the law itself on trial, instead of the administration of it, and relies upon the proof which it contains on its face of its unconstitutionality.

The commissioners are not and cannot be placed on trial by this record, and whenever their conduct shall be arraigned in a proper manner, I have no doubt they will justify their decisions, whatever they may be.

Another objection which has been urged against the law of Massachusetts is hostility to the policy of the United States.

What is the policy of the United States on this subject? Are we to infer, without proof, that the United States are not equally interested with the State in promoting good morals, in protecting health, in preventing the waste of property and the increase of crime? How can the United States have less at stake than the State, or be less interested in cherishing the virtues which make a good population, or in discouraging the vices which lead to the opposite result?

On what ground can the promotion of sobriety and temperance be hostile to the policy of the United States? Is it their purpose to debauch public morals, to encourage a lavish waste of property, and to multiply crimes, from the mercenary consideration of deriving revenue from a process of degradation?

Does the policy of the United States war with the best interests of society, and are they anxious for revenue at such sacrifices? What proof is there of such an unnatural state of things?

It is supposed, that the United States countenance an indiscriminate traffic, because they permit wines and spirits to be imported, and lay upon them a duty. This naked fact is alleged to be evidence of a declared purpose to raise the utmost revenue which can be realized, and that a law interfering with this design is unconstitutional?

If this be so, then the law of Massachusetts which punishes habitual drunkenness is unconstitutional, for it diminishes consumption; and the law which authorizes the appointment of guardians over such persons must share the same fate, as well as all other laws which in any way regulate trade so as to impose any restraint upon it.

But there is more decisive and satisfactory evidence of the policy of the United States than such remote, uncertain inferences.

In 1838, Congress invited the army to abandon the use of the spirit ration, and offered by law a substitute to all who would accept it, in sugar and coffee; and the same principle has been carried into the navy, and has met with approbation in both branches of the service.

In 1813, Congress passed a law, 3 Stat. at Large, 73, in which there is a clear and decisive expression of opinion. This law imposed internal taxes, and the collectors are authorized to grant licenses to sell at retail wines, distilled spirits, or merchandise, "provided always that no license shall be granted to any person to sell wines, distilled spirituous liquors, or merchandise as aforesaid, who is prohibited to sell the same by any State."

Here is a clear expression of the views of Congress in regard to State legislation and State policy. It shows the deference and respect which it considered to be due to so important and delicate a subject, by conforming its legislation to that of the States, and adopting this policy. The law is now repealed, because the tax is abolished, but the opinion loses none of its weight or importance from that consideration.

Again; it has been suggested that the revenue laws, which permit wines to be imported in bottles, and brandy in kegs of fifteen gallons, are evidence that Congress intended to confer a right to sell in such quantities, and therefore the law of Massachusetts is repugnant to them.

This argument rests on the supposition that Congress has the right to regulate the internal trade of a State, while it is admitted that States alone possess this right. If, therefore, such were the intention of Congress, the acts would be void for unconstitutionality; for the federal government cannot claim a power denied to it.

But there is no reason for believing that those provisions were made with reference to any such object. They relate wholly to the custom-house and to exportation. Such is known to be the history of the fifteen-gallon kegs, and the same is doubtless true of wines.

It is a regulation of convenience, and designed to keep the import trade in a form to prevent smuggling and frauds, either in importation or exportation.

These considerations go to maintain the conclusion, that the law of Massachusetts was made in good faith, and for the purposes indicated by it; that it is derived from powers distinctly reserved to the State, and is a regulation both of the internal commerce and police; that its provisions are adapted to the purposes for which they are designed; that it is not a regulation of foreign commerce, or of the revenue system, and does not affect either unlawfully; and that it is not hostile to the policy or interests of the United States.

It is evident, also, that it is sustained as a police measure by the whole current of authority antecedent to, as well as by, the case of New York v. Miln.

The plaintiff in error next contends, that an importer of wines and spirituous liquors has a right to sell them in the same vessels in which they are imported. He then alleges, that wines may be imported in bottles, and brandy in kegs of fifteen gallons, while the law of Massachusetts prohibits the sale in less quantity than twenty-eight gallons, without a license.

For the purposes of this case I might concede the position, for the plaintiff is not indicted for selling wines in the original bottle, or brandy in the original keg; but for dealing out spirituous liquors by retail in small quantities, from a quart or pint to a gallon.

The record does not show that he is an importer and vender in the original package or vessel, or that he ever had wine in bottles or brandy in kegs of fifteen gallons. If, therefore, the original importer has such a privilege, this plaintiff can make no pretension of right to it.

But from what authority is this right to sell in the original vessel derived?

The laws of the United States do permit the importation of wines in bottles, and brandy in kegs of fifteen gallons. Formerly, brandy could not be brought in, in vessels of less capacity than ninety gallons; but the quantity was reduced, as is well known, to favor the export to Mexico, where so large a quantity could not be taken into the interior upon pack-horses.

But if these laws were intended, as is supposed, to regulate the internal trade of the States, they could not be sustained; as Congress has no power or right to regulate that traffic. They have, however, never been understood to have any such bearing, but to be what they purport, regulations of imports and exports.

But the case of Brown v. Maryland, 12 Wheat. 419, is supposed to give some support to this position.

A law of Maryland forbid importers and venders in the original package the right of selling without first obtaining a license, for which fifty dollars were exacted. Brown, being such an importer and vender, violated the law, was prosecuted, and the case finally decided by this court.

The court held, first, that the law of Maryland was a revenue act imposing a tax;

Secondly, that such a tax, imposed upon the importer as such, and before any right of sale could be exercised, was a duty on imports, and expressly prohibited by the plainest terms of the constitution, which forbids the States the right to lay duties on imports;

Thirdly, that such a duty, so levied, is a regulation of foreign commerce, and for that reason also unlawful.

The decision goes no further than to deny the power of a State to impose a tax upon the importer, as such, before he has made a sale; because this is, in effect, a duty on imports.

There is nothing in the case which questions the right of a State to exercise police power over imports and importers, for any of the great purposes to which such legislation is directed.

The principles which govern the decision are laid down with a clearness which cannot be mistaken.

The exemption from taxation is limited to the importer, and to a sale by him in the original package. The mischievous consequences of a more extended exemption were foreseen and guarded against, in order to leave the internal affairs of the States untouched.

The court, to prevent all misapprehensions, declare that a sale of such goods, a breaking up of the packages, or an appropriation of the articles to use, or any similar act, mixes the goods with the mass of property in the State, and extinguishes the privilege.

The exemption is, therefore, limited to the importer and vender by the original package, and is denied to all others.

The authority, consequently, furnishes no support or countenance to the case under consideration, as the plaintiff was neither an importer or vender by the original package.

But if the plaintiff were an importer, instead of a retailer, the case of Brown v. Maryland would furnish no justification for a violation of the law of Massachusetts.

The law is not a revenue act, but a police measure. It imposes no tax upon imports, and therefore does not fall within the prohibitory clause of the constitution.

The difference between the laws is this: the State of Maryland exercised a power prohibited; while the State of Massachusetts founds its legislation upon one which is conceded.

The health laws, quarantine laws, ballast laws, c., prove that the police power may be extended to imports and importers, if the public safety or welfare demands it. If I am right, therefore, in assuming that the traffic in wines and spirits is a suitable object for regulation, the power of the State cannot be successfully questioned by importers and venders in the original package or vessel.

If, then, the plaintiff had proved all the facts which have been assumed, they would avail him nothing.

All the important questions which have been raised in the case have now been considered, imperfectly, no doubt; but, having been brought to the notice of the court, they will receive the consideration which their importance deserves.

The course of reasoning pursued is intended to establish the following positions: —

1. That the traffic in wines and spirituous liquors has, in the public judgment, as expressed through ages and centuries, demanded restraint and regulation.

That, the United States having no powers to impose such restraint, if it be denied to the States, the right is abolished.

That such a result would be alike injurious to both parties, and desired by neither.

That, under such circumstances, the court would be justified in declaring the law void only by commanding necessity, and that no such emergency exists.

2. That, in the partition of powers between the federal and State governments, the rights of the former are granted and enumerated in the constitution; while the latter retain all powers not granted or prohibited by that instrument.

That the grant of a right to regulate foreign commerce excludes the right to regulate domestic commerce, which is left in the States.

That the right to make police regulations is also left in the States.

That the law of Massachusetts belongs to these classes, and is derived from lawful, constitutional power vested in the State.

3. That, if the right of a State to maintain police laws is complete and unqualified, there can be no constitutional conflict with the laws of the United States, as the power is absolute and supreme.

But whether this be so or not, the right of the State to regulate its internal traffic and police is acknowledged, and can never be questioned, except in cases of manifest incompatibility or direct repugnancy, and there is no proof that the law of Massachusetts has any such action, effect, or influence on the powers or laws of the United States.

4. That the United States having a right to regulate foreign commerce is bounded by the point where such commerce becomes internal, and cannot follow it for the purposes of regulation or control after it becomes subject to State authority, without usurping the constitutional power of the State.

5. That the plaintiff in error was indicted and convicted for retailing spirits without a license, being neither an importer nor vender of such spirits in the same vessels and quantities as imported.

That if he had been such an importer and vender, it would avail him nothing, as the question before the court does not relate to taxation, or fall within the prohibitory clause of the constitution, but regards the right of the State to regulate its internal commerce and police after the work of the United States is completed, so far as foreign commerce is concerned, and their power exhausted.

6. That, in whatever aspect this case is viewed and considered, the law of Massachusetts cannot be drawn into doubt by the severest scrutiny, nor can the power of the United States be made to reach or control it without a manifest invasion of the rights reserved to the State by the terms of the constitution.

The counsel then closed his remarks by adverting to the importance which the question had acquired by being long a subject of earnest controversy and agitation. Many prosecutions were now pending, and, the public being anxious to be relieved from this state of suspense, he hoped the matter would be brought to a speedy and final issue. What that issue would be, it did not become him to anticipate; but he would venture to give assurance that the people of Massachusetts would acquiesce in it, and give their support to the law as expounded by this tribunal, to which they looked at all times with the deference and respect due to those who settle the greatest of all questions, the boundaries of power.

Mr. Webster, in reply, said that he agreed with the learned counsel who had just concluded his argument in many of the positions which he laid down. It was true that the retail trade should be regulated, and that intemperance was a great evil. Even if he differed from the State on the policy of these laws, he claimed neither for himself nor the court a power to review her decision upon that point. The State was the sole and uncontrolled judge of her policy. But the question here was one of authority, and not policy. Has Massachusetts the power to pass such laws? Whether she has or not, it is useless to inquire into her motives for passing them. It is admitted by all, that the United States have power to regulate commerce; and it is also admitted by all, that the States have certain police powers. So far, there is no difference of opinion. But the learned counsel says that these powers stand upon equal ground, both resting on sovereignty; and his inference is, that, in case of conflict, one has as much right to stand as the other. Here our difference of opinion commences. We say that these powers do not stand upon equal elevation, but, if there be a conflict between them, the State law must yield; because the constitution says that acts of Congress, passed within the scope of the constitutional power of Congress, are the supreme law of the land. There can be no conflict. The State law must recede. It has been so settled by this court. In 3 Wheat. 209, 210, it is so laid down, in the very terms which I use. Let us see, therefore, whether both laws, that is to say, the State law and the acts of Congress, can stand. What are they?

The former laws of Massachusetts made it obligatory to grant licenses. The phrase was "authorized and directed" to grant, c. But under the act of 1837 they may be withheld altogether, and the fact is, that for some years past none have been granted. Now there is no difference, in substance, between an absolute prohibition of licenses by law, and a grant of power to another body to withhold them. In both cases, the same result is produced by the action of the same authority, namely, the State. What is this result? It is, that no person can sell liquor in a less quantity than twenty-eight gallons.

What are the laws of Congress? They are, that brandy can be imported in casks of fifteen gallons. 4 Statutes at Large, 235; ibid. 373.

What is the right of the importer after complying with these laws? Does the right to sell follow the right to import? This court has already answered the question. In 12 Wheat. 433, it is said, — "There is no difference between the power to prohibit sales and the power to prohibit importation. None would be imported if it could not be sold." There is no exemption, by the law of Massachusetts, in favor of the importer himself. He cannot sell without a license. All are included within the law. It was said by the counsel on the other side, that the United States have not complained of any infringement upon their authority. But this makes no difference. Cases are always brought here by individuals who complain of a violation of their rights. It was also said, that Congress was bound to preserve and enforce the observance of moral duties. But if Congress does not prohibit a particular act, the inference is, that it does not think proper so to do. It remains to be shown that penalties are the best mode of enforcing temperance. Father Matthew does not think so. The States may pursue this policy if they choose, provided they do not interfere with vested rights. There are two things which Massachusetts has not done, both of which it may be wished that she had: —

1. She has not presented a memorial to Congress to prohibit the importation of liquor in small quantities.

2. She has not prohibited the domestic distillation of spirits. In 1840, five millions of gallons were distilled within her limits. Of this we do not complain. But if she has a right to pass the law now under consideration, she has also a right to exempt domestic distilled spirits from its operation. What, then, will be the condition of things? It will be, that her restrictions will be placed exclusively upon that article which Congress have said shall be subject to no restriction.

JOEL FLETCHER, PLAINTIFF IN ERROR, v. THE STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS, DEFENDANT IN ERROR.

This case was very similar to the preceding one. The principal difference was in the admission of the fact, that the brandy, for the sale of which the plaintiff in error was indicted, was duly imported into the United States, the duty upon it paid, and that it was purchased by Fletcher from the original importer.

The following admission of facts was filed in the cause: —

"It is admitted, in the above case, that the liquors alleged in said indictment to have been sold by the defendant, in violation of the act of this State, entitled, An act enabling town councils to grant licenses for the retailing strong liquors, and for other purposes,' was brandy, the growth, produce, and manufacture of the kingdom of France; which said brandy was duly imported into the United States at the port of Boston, in the district of Massachusetts, for the purpose of sale in the markets of the United States, and the duties levied thereon by virtue of the act of Congress of the United States, approved the 30th day of August, A.D. 1842, entitled, `An act to provide revenue from imports, and to change and modify existing laws imposing duties on imports, and for other purposes,' were duly paid to the collector of the said port of Boston; that said defendant bought said brandy of the importer thereof for the purpose of sale; and, in pursuance of said purpose, did, at the times alleged in said indictment, sell the same, at said Cumberland, without license first had and obtained from the town council of the town of Cumberland.

"It is further agreed that the town council of said town of Cumberland have refused to grant any license for the year ensuing the Thursday next following the first Wednesday in April, A.D. 1845, for retailing strong liquors in any quantities, having been instructed by the electors of said town, in town meeting assembled, not to grant any licenses for the purpose aforesaid."

It is not necessary to recite the whole of the laws of the State, as they were very similar to those of Massachusetts. The following one will be sufficient: —

"An Act in Addition to an Act, entitled, `An Act enabling the Town Councils to grant Licenses, and for other Purposes.'

"It is enacted by the General Assembly as follows: —

"Section 1. No licenses shall be granted for the retailing of wines or strong liquors in any town or city in this State, when the electors in such town or city, qualified to vote for general officers, shall, at the annual town or ward meetings held for the election of town or city officers, decide that no such licenses for retailing as aforesaid shall be granted for that year."

Fletcher was indicted upon two counts. The first was for selling strong liquor, to wit, rum, gin, and brandy, by retail, in a less quantity than ten gallons, without license; and the second, for selling, and suffering to be sold, in his possessions, ale, wine, and other strong liquors, by retail, c.,c.

Upon this indictment he was convicted, and the case brought from the Supreme Court of Rhode Island to this court. The assignment of errors by the counsel of Fletcher was as follows: —

Assignment of Errors. "United States of America, Supreme Court: — Joel Fletcher, Plaintiff in error, v. State of Rhode Island and Providence Plantations, Defendant in error.

"On a judgment of the Supreme Court, begun and holden at Providence, within and for the county of Providence and State of Rhode Island and Providence Plantations, on the third Monday of September, in the year of our Lord one thousand eight hundred and forty-five, wherein the said State of Rhode Island and Providence Plantations, by Joseph M. Blake, Attorney-General of said State, is prosecutor, and the said Joel Fletcher is defendant, the said Joel Fletcher, upon a writ of error upon said judgment, returnable to the next term of the Supreme Court for the United States, to be begun and holden at the city of Washington, in the District of Columbia, on the first Monday of December, in the year of our Lord one thousand eight hundred and forty-five, assigns for error in the records of process and judgment aforesaid, founded on certain statutes of the said State of Rhode Island and Providence Plantations, and the construction thereof by the said Supreme Court, the following, to wit: — That the judgment rendered in the Supreme Court of said State in this case, it being the highest court of law and equity of the said State in which a decision could be had in said case, should be reversed, for the reasons following, viz.: — That the act of the General Assembly of said State of Rhode Island and Providence Plantations, entitled, `An act enabling town councils to grant licenses for retailing strong liquors, and for other purposes,' and the act entitled, `An act in addition to an act, entitled, An act enabling town councils to grant licenses for retailing strong liquors, and for other purposes,' and appended hereto and set out as a part of the record in the said cause upon which said judgment was founded, and also the opinion and judgment of said Supreme Court of said State of Rhode Island and Providence Plantations, in the application and construction of said acts to the proof submitted in said cause, are void, the same being repugnant to that clause of the eighth section of the constitution of the United States which provides, — `That the Congress shall have power to lay and collect taxes, duties, imposts, and excises, to pay the debts and provide for the common defence and general welfare of the United States; but all duties, imposts, and excises shall be uniform throughout the United States'; and are also repugnant to that clause of the said eighth section of said constitution which provides as follows: — `The Congress shall have power to regulate commerce with foreign nations, and among the several States, and with the Indian tribes'; and are also repugnant to that clause of the tenth section of said constitution of the United States which provides as follows: — `No State shall, without the consent of Congress, lay any imposts or duties on imports and exports except what may be absolutely necessary for executing its inspection laws,' and the acts of Congress, in pursuance of the aforesaid several clauses of said constitution of the United States now existing in full force, which objections were, at the trial of said cause before said court, taken by the said Fletcher in his defence, and were overruled by said court. There is error also in this, to wit, that, by the record aforesaid, it appears that the judgment aforesaid, in form aforesaid given, was given for the said State of Rhode Island and Providence Plantations against the said Joel Fletcher; whereas; by the law of the land, the said judgment ought to have been given for the said Fletcher against the said State; and the said Joel Fletcher prays that the judgment aforesaid, for the errors aforesaid, and other errors in the record and proceedings, and the matters herein set forth, may be reversed, annulled, and held for nothing, and that he may be restored to all things which he has lost by occasion of said judgment.

JOEL FLETCHER, BY JOHN WHIPPLE, and SAMUEL AMES, His Attorneys."

The cause was argued by Mr. Ames and Mr. Whipple, for the plaintiff in error, and Mr. R.W. Greene, for the State.

Ames and Whipple, for the plaintiff in error, read and commented on the various acts of the General Assembly of the State of Rhode Island, in relation to the licensing of taverns, ale-houses, and the like, and the sale of spirituous liquors therein, commencing in the year 1647, and coming down to the year 1824, for the purpose of showing, that, from the earliest period in the history of the Colony to the last-named period in the history of the State of Rhode Island, her policy had been uniform on this subject, and similar to that of most Christian and civilized countries, and of all the Colonies and States of the Union, — that is, to license and regulate the sale of spirituous liquors, that it might be consistent with the preservation of good order, and with the Christian virtue of temperance, and not to inhibit it, in enforcement of the Mahometan rule of abstinence. They showed that the licenses granted by the municipal authorities of the various towns of Rhode Island for the keeping of taverns and the retailing of strong liquors had been a source of revenue to the towns and to the State, to aid in the maintenance of the police of the State; and insisted, that, in the fair construction of the acts empowering the town officers to grant them, the words " may grant" were legally construed " must or shall grant," according to the well-known general rule of so construing the word "may," when used in a public act or municipal charter to impart an authority to public officers, in the exercise of which the public interest or private rights were concerned; and that the practice of the authorities of the towns of Rhode Island had always concurred with this well-known rule of legal construction. To this point they cited, Backwell's case, 1 Vernon, 152; Rex v. Barlow, 2 Salk. 609; S.C., Carthew, 293, 294; King v. Inhabitants of Derby, Skinner, 370; Magdalen College case, 3 Atk. 166; King v. Mayor and Jurats of Hastings, 1 Dowl. Ryl. 149; Newburgh Turnp. Co. v. Miller, 5 Johns. C.R. 101, 113, 114; Ex parte Simonton, 9 Porter's Ala. R. 390.

They then showed, that, under the influence of what is called the temperance reform, a new principle had been introduced into the legislation of Rhode Island on this subject, which, after numerous fluctuations, had, in January, 1845, settled the law, if indeed it was settled, in the shape of the act of January, 1845, which in substance forbids in any town the sale of all strong liquors in less quantities than ten gallons, without license first had from the town council of the town, and provides, that if, on the day appointed for the election of town officers, a majority of the electors of a town voting on the subject shall vote to grant, or not to grant, licenses for the ensuing municipal year, the town council of the town were irrevocably bound during the year to obey the instruction.

They admitted that a law regulating the sale of strong liquors under a license for the sale, even though a bonus was required for the license, was valid; but that a law like the present, in its purpose, end, and operation, as well as in its form, substantially and practically prohibitory of the sale, was, in its application to the case at bar, — in which the liquor sold was brandy imported from France, upon which, under the act of Congress of 1842, entitled, "An Act to provide revenue from imports, and to change and modify existing laws imposing duties on imports, and for other purposes," the duties had been regularly levied and paid, — void, as repugnant to that act, both as a revenue measure upon which the expenditures of the government of the United States were based, and as a regulation of the commerce of the United States with France.

Though they maintained the exclusive power of Congress, under the constitution, to regulate commerce with foreign nations, as well as among the States and with the Indian tribes, — as required by the necessities of the country at the time of its formation and adoption as new, — to preserve proper commercial relations abroad, and for the prosperity and peace of the several States, as well as that an adequate revenue might be derived from duties on imports, they waived the discussion of the exclusiveness of this power as an abstract power in Congress, in the present case, for a double reason: — because Congress had exercised it in the subsisting act of 1842, and because the act of Rhode Island could in no proper sense be said to be an exercise of the power to regulate foreign commerce.

They admitted that an act of a State, to come in conflict with the exclusive power of Congress to regulate foreign commerce, when not exercised, must of itself be an exercise of that power; but maintained, that any law pertaining to the mere police of a State might come in conflict with a commercial regulation of Congress; and, if it did, must, so far as it did, yield to the law of Congress, as the supreme law of the land, when passed in pursuance of the constitution. They were not aware, until the doctrine had been boldly advanced by the counsel for Massachusetts, in the preceding case, — tried with this by order of the court, — that it had been "a growing opinion," and still less, that by the decision of this court in New York v. Miln, 11 Peters, 139, 141, it had become "the settled law" of this court and of the land, that in all such cases of conflict the rule of the constitution was reversed, and that the law of Congress became subject to the law of the State, as to the supreme law of the land, and that the clause of the constitution asserting the supremacy of the constitution, and of the laws and treaties of the United States made under it, applied only to the case of concurrent powers; nor did they so understand that case. They maintained that the doctrine thus announced was little short of absurdity, since it admitted the supremacy of the law of Congress in the case of concurrent powers, — in the exercise of which the governments of the States and the government of the United States enjoyed, as it were, a joint empire, and where, from the very fact that the powers were concurrent, they could never, in a constitutional sense, be said to conflict, and so there was no room for the supremacy in question, — and denied the supremacy of the United States in the legitimate exercise of its exclusive powers, making the United States the slave of the States in its own exclusive dominions, under a constitution which declared, without limitation or reserve, that its just power should be supreme, not only over the laws, but even the constitutions, of the States. Upon this question they appealed from conservative Massachusetts to democratic Virginia, and cited the 44th Paper of the Federalist, p. 183, Gideon's edition, in which Mr. Madison, in commenting upon the clause of the constitution in question, concludes his defence against the only objection that was made to it — that it rendered the constitution, laws, and treaties of the United States supreme over the constitutions of the States — with this statement of the result if this supremacy had not been given: — "In fine, the world would have seen, for the first time, a system of government founded on an inversion of the fundamental principles of all government; it would have seen the authority of the whole society everywhere subordinate to the authority of the parts; it would have seen a monster, in which the head was under the direction of the members." In this case, a supremacy over the constitution, laws, and treaties of the United States was claimed for every, even the most petty, police law of a State, or even a town or city, when that constitution and those laws and treaties were made supreme over the constitution of the State by which, or under the authority of which, the police law was passed. They commented upon the case of New York v. Miln, for the purpose of showing that the general language there used by Mr. Justice Barbour in delivering the opinion of the court, from which the strange doctrine in question had been inferred, should, according to the rule in this respect laid down by Mr. Chief Justice Marshall in Cohens v. Virginia, 6 Wheat. 399, be restrained to the case before the court, which, by the decision of the court, involved no conflict of the powers of the government of the State of New York with those of the government of the United States, and, by the illustrations given of the meaning of the language, could be fairly applied only to cases where no conflict existed. Upon this point, they cited also the opinions of Mr. Chief Justice Taney, and of Mr. Justice McLean, in the subsequent case of Groves et al. v. Slaughter, 15 Peters, 505, 509, members of the court at the time the opinion in New York v. Miln was delivered, and concurring in that opinion, for the purpose of showing that they could not have understood the language in question in the sense contended for.

(Mr. Justice Wayne here declared his entire dissent from the general opinions expressed in the language in question, and even declared that he had no recollection that such language was in the opinion of the court in that case at the time it received his concurrence.)

They concluded upon this point, that if any persons really held the doctrine in question, upon the supposition that it was necessary for the maintenance of certain peculiar institutions of some of the States, which, though guaranteed by the constitution, were at war with its whole spirit, as well as with the principles of the Declaration of Independence, which the constitution carried out as far as it could consistently with the existing condition of the country, they were guilty of "a blunder," — in the opinion of a great but unprincipled politician, in such matters, always worse than "a crime." The clauses in the constitution guaranteeing these institutions were an anomaly in it. It was better, then, to treat those institutions and every thing fairly relating to them as anomalous, — to be governed by peculiar rules, — than, by converting an anomaly into a general rule, to pervert the whole spirit, and invert the whole order, of the constitution, and, by thus stripping the general government of all its powers, deprive the States, and especially the smaller States, of all the rights and protection guaranteed by the United States. They who were willing, and all sensible people were, to stand by the compromises of the constitution, would do much to redeem the pledge thus given for them; but it was both unjust and impolitic to require this of them.

They came, then, to the only real question in the cause, whether the law of Rhode Island in question was in conflict with the tariff law, as it was called, of 1842.

The act of Congress admits brandy by name to sale and consumption in the States, at one dollar per gallon, both for revenue and as a regulation of commerce with France; and they cited The Federalist, Pap. 12, p. 46, to show that no inconsiderable revenue was originally anticipated from spirits.

Congress might have prohibited the importation of brandy, as it did in the same act the importation of obscene prints, c., but it licensed the importation, and, by necessary intendment, the sale and consumption, of brandy by the above act, as the United States did, by the treaty of July 4, 1831, with France, the admission of wines at certain rates "to consumption into the States." Right or wrong, Congress had said, by the act in question, to the foreign producer, to the importer, retailer, consumer, pay us one dollar per gallon, and you shall have brandy from France for sale and consumption. Upon this offer all parties had acted, produced, imported, bought of the importer, and in the price of the article had paid the duty; and after this it was something worse than illusory, that we should be told that the importation only was licensed, or at most the sale in the original package or cask, and that the States might destroy the whole value of the import by prohibiting its sale and consumption, and thus effectually countervail the legislation of Congress in one form, which it was agreed they could not do in another. This would be to make the constitution deal in mere forms and names, and not in things.

The law of Rhode Island proceeds upon this formal distinction. It says to Congress, you may license the importation of brandy, but not a drop of it shall be sold or consumed in any town of ours, if the voters of the town choose to prohibit it. You may expect revenue from it; but so far as our citizens are concerned, not a penny shall they pay. We forbid it by law.

The law in question is most skilfully devised to effect its purpose. It does not in form prohibit altogether the sale and consumption of foreign brandy, but only really and substantially. It says, you shall not sell in less quantities than ten gallons, and might as well have said in less quantities than twenty-eight gallons, or one hundred gallons, or one thousand gallons. It cuts off, strikes out, one link between the importer and consumer, and might as well destroy, and does thus practically destroy, the whole chain; for there can be no importation without sale, no wholesale without retail, — and these are arbitrary terms, — no retail without consumption.

In case of a direct prohibition of sale like this there can be no metaphysical subtilty necessary to ascertain the degree of conflict between the State law and the law of Congress; whether it amounts to "a possible or potential inconvenience," or "an extreme inconvenience," or "a direct repugnancy," or "plain incompatibility." Incidental diminution of consumption from licenses, taxation, charters of temperance societies, prohibitions of sales to drunkards, children, slaves, c., is another thing. Here the prohibition is both direct and substantial. To prohibit and prevent the sale of the imported article is both the purpose and effect of the law; and upon the ground that, by the act of 1842, Congress had licensed what was wrong.

The very test proposed by this court in New York v. Miln, 11 Peters, 143, is thus met precisely by the law in question.

It is said that the sale of liquor is immoral. Then let Congress prohibit, not seek a revenue from its importation. Let reform in this respect begin constitutionally with Congress; for in no cause, however sacred, can a State be said to act rightly, when acting unconstitutionally.

In application to any other article of commerce between the United States and foreign countries, or between the States, but liquor, it would be admitted that such a law was void, — as to rice, sugar, cotton, tobacco, flour, cotton goods, French silks, woollen cloths, c. What is the ground for distinction? It is as much within the police power of a State to pass laws to encourage or compel household manufactures, or the raising of certain agricultural products, by forbidding the sale of cotton, woollen, or silk fabrics, in less quantities than ten, or twenty, or one hundred pieces, — or of cotton, rice, flour, tobacco, by forbidding the sale of these articles in less quantities than ten, twenty, or one hundred bales, casks, bundles, or barrels, — as to prevent the use of imported liquor, by forbidding the sale in less quantities than ten, twenty, or one hundred gallons; and yet all will agree that a law like that supposed would be clearly void, in its application to such articles imported from foreign countries, or another State. Let some casuist mark the difference between the cases if he can.

The law in question is no more entitled to be called "a police law" than the law supposed, if there was any thing in such a mere name. Any law relating to the internal government or police of a State or city is a police law, whether civil or criminal, and it would be absurd to contend, that constitutionally one police law was more sacred than another; since the State or city is the sole judge of the necessity or fitness of either, provided always, that in passing such laws it does not interfere with those constitutions or laws which control its powers of legislation.

They contended that the fact, that the sale in the case at bar was not of the article in the cask in which it was imported, could not affect the question; the notion suggested obiter, not adopted, by Mr. Chief Justice Marshall, in Brown v. Maryland, that the importation licenses the sale only in the original package, being false in theory, and destructive to the constitutional powers of Congress in practice. As the governments of the United States and of the States operate upon the same men and things, within the same territory, at the same time, it is obvious that all material barriers between them are broken down, and that in general we must look for the boundary line of the two jurisdictions in the relation and condition of the men and things upon which they operate. This is certainly true of the power to tax imports, or things which have been imported, and of the prohibition to tax exports, or things to be exported. It is obvious, that the States may and do every day tax residents for their personal property, whether in the form in which it has been imported, and even lying in the custom-house, or in which it is to be exported, on the wharf, or in the vessel, just as if the import or export was confused with the mass of property in the State; and no one deems such a tax as a tax upon imports or exports, in the sense of the prohibition of the constitution, or in any proper sense whatever. Nor would such a general exercise of the taxing power by the United States upon all personal property of its citizens, including imports and exports, be a tax or duty upon imports or exports, but merely a tax upon personal property, and upon the import or export as such property. Any discriminating tax, however, upon a thing imported, as such, at any time, in any form, either of the law or the import, would certainly be a tax or duty upon imports forbidden to the States; and any discriminating tax or duty upon a thing to be exported, as such, would be a duty upon exports forbidden to the United States, and to the States, except under the control of ongress, for the purpose of executing their inspection laws. There is nothing in the nature or form of an article which makes it an import, only something in its history; there is nothing in the nature or form of an article which makes it an export, only something in its destination; and if any thing be specifically taxed as imported, or to be exported, it is a tax upon an import, or upon an export, within the letter and spirit of the constitution. Once allow that the States may levy discriminating duties upon things imported from foreign countries, or other States, the moment they have lost their original form, or have been taken out, as they must be for sale and use, of the package or cask, and the commercial power of Congress, and the revenues of the United States from this source, are lost together. Once allow that the United States may levy discriminating duties upon things to be exported from the States, as such, in any form or package, or in the process of growth or manufacture, and it is obvious that the agriculture and manufactures of the States are directly at the mercy of the general government. This "package notion," as it is called, is one of those vain but natural efforts of the mind to attach itself to something material to rest upon, even in matters which do not admit of such helps and rests.

The taxing power is a sovereign power, necessary for the support of government, and never in its nature or effect treated as a repugnant power. Providence Bank v. Billings, 4 Peters, 514; Groves v. Slaughter, 15 Peters, 505. When exerted by the State over personal property in general, including imports, it cannot affect foreign commerce, or the revenues of the United States, since it bears equally upon all articles, and thus keeps their relative value the same. To become mischievous, either constitutionally or practically, to foreign commerce, a tax law must discriminate as to the subjects of it.

This, however, is not true of prohibitory laws, like the law in question. If practically such a law forbids the sale, destroys the vendible character of an imported article, which constitutionally it cannot do, it does not help the law in relation to such articles, that it also destroys the vendible character of the like article manufactured in the State, which constitutionally it may do. It is void pro tanto imports, in any form or shape.

There is also this plain distinction between such a law and an ordinary license law: that the latter does not, like the former, destroy the vendible character of the article, but, admitting this, restricts the power of sale to certain selected persons licensed to sell the article; and practically the difference is just as great as the different terms license and prohibition import.

No one denies the right of the States to regulate the sale or punish the improper use of any article, domestic or imported, within their territories, under such customary and proper restrictions as substantially leaves to the article its vendible character. It is the taking away of this character from imported brandy, upon which the duties have been levied and paid, of which we complain in this case.

Thus, the States may and do prohibit sales of all articles on the Lord's day, in enforcement of a divine command; of liquor to drunkards, children, c., to prevent riot and intemperance; and they tax and license hawkers and peddlers, and auctioneers of all articles, and retailers of things dangerous in their use, to prevent fraud, regulate domestic trade, raise revenue, and insure public safety and social order. All this, so far from injuriously affecting the sale of things, aids and assists it, by making it safe, regular, profitable, and consistent with the well-being of the community. The same remark applies to quarantine laws, and sanitary regulations in general. They may delay the infected ship, or stop the infected person, or even destroy the infected article; yet who does not see that in this very way they aid foreign commerce, by making it safe to the community which carries it on, and promote traffic in imports, by preventing all danger in handling, using, or consuming them? Even these, however, may be so needlessly restrictive, or, still worse, totally prohibitory in their character, as obnoxiously to interfere with foreign commerce, and in such case would merit no more favor, on account of the professed purpose of the law, than if avowedly passed to prevent foreign commerce in certain articles, or to prevent it altogether.

The point where regulation ends and prohibition commences may in some cases be difficult to determine, as many practical questions are. The cases must be decided as they arise, and, as Mr. Chief Justice Marshall suggests in Brown v. Maryland, experience will assist and develop the true tests of decision.

It is sufficient that in the case at bar there is no such difficulty, the design, end, and effect of the law in question being to prohibit the sale of an article made vendible in the States by a law of Congress.

The law is deemed more objectionable because in effect it prohibits the sale of the same article in some towns in the State, and licenses it in others; thus making the law of Congress operate unequally within the territory of the same State.

Finally, the record shows that the only proof against the plaintiff in error was of the sale of brandy imported into Boston, upon which the duties had been duly levied and paid. He was willing to take a license and to pay for it, or to sell his import through any person who was licensed to sell it; but the law forbade all sale in any practicable shape in the town in which he lived, in derogation of the right of sale attached to an article imported under the laws of the United States. In its application to his case the law is void, inasmuch as it derogates from a right secured to him by a law of Congress.

Mr. R.W. Greene, for the State.

The law of Rhode Island is strictly a police law, having for its object the suppression of drunkenness. It was not intended to carry out any object of commercial policy. It was not intended to secure to the citizens of Rhode Island, within her own territory or elsewhere, any advantages of commerce or manufactures beyond what are enjoyed by the citizens of all the other States. It was not intended to countervail any commercial policy of the federal government.

It is a law intended to aid in the accomplishment of a great moral reform, and indispensable to its success. The federal government have adopted similar views with the General Assembly of Rhode Island, in a case coming within the sphere of their constitutional power. An act of Congress authorizes the substitution of tea and coffee for the spirit rations both in the army and navy.

I shall endeavour to show that the Rhode Island law does not present a case of conflict, upon any sound construction of the constitution. What are the provisions of the Rhode Island law? It allows importation, and sale by the importer, and every body else, in bulk, as imported. It goes further, it allows a retail trade to the importer and every body else in the article after bulk broken, and that as low as ten gallons. It goes still further, and vests in the towns a discretionary power to decide at their April town meetings, whether they will grant licenses to sell in quantities under ten gallons for the coming year. The inhabitants of the towns are most interested in the decision, and most able to decide right. Not by caprice, but by sober and enlightened judgment. There is a propriety in leaving the decision to the towns.

An objection to the law is, that practically, it is said, the prohibition of sales under ten gallons is a total prohibition. The object in fixing this amount was to prevent sale by the glass.

It is said by the counsel for the plaintiff in error, that this law is prohibitory. But it is not necessarily so, nor probably so. Discretion implies not only the power to decide either way, but the probability of such decisions. If all the towns had been opposed to granting licenses, then the General Assembly would have passed a general prohibitory law.

It is agreed, that, if a conflict results from the practical operation of a law, it must be decided as if such conflict had been intended by the legislature. But the necessary effect must be to conflict, and not the possible, or even the probable effect.

There is no evidence before the court that every town in the State, except Cumberland, has not granted licenses, which are now in full effect. And yet the court is called upon to pronounce this law unconstitutional, upon the ground of this possible prohibition, when the prohibition may not exist in any town in the State, except Cumberland. The power vested in the towns under this law is the same as that vested in the town councils under previous laws. A power to grant licenses is a political power in town councils. and not at all analogous to the cases cited by the counsel for the plaintiff in error. Those were cases of private right, where a mandamus would go to enforce it. Would such a proceeding lie against a town council by a party to whom a license had been refused? But erase from the statute the entire provision vesting any power in the towns to grant licenses, and leave the prohibition upon all sales under ten gallons absolute. This would not be a case of conflict, because it allows of sales at retail as low as ten gallons.

It is admitted that States have a right to pass license laws. All had license laws when the constitution was adopted; no change took place. What is a license law but a prohibition upon every body else, except the party licensed? The difference between a license law and the Rhode Island law is in the degree of prohibition, not the principle. Both are prohibitory; the Rhode Island law may become and probably would become more prohibitory than an ordinary license law. Does this difference render the one law void, when the other is valid? How much more prohibitory must a law be than an ordinary license law, in order to render it void?

What rule or principle can the court adopt in relation to such a subject? How much must be the restriction upon sales, after the article is broken up, and out of the hands of the importer, in order to render the law void? What means has the court to ascertain the practical effect of restrictions? And yet it is said the effect is to determine the law.

All license laws, like the law under consideration, diminish importations and revenue by checking sales. Their object, like the object of the Rhode Island law, is to prevent drunkenness. In other words, to prevent consumption. The check upon importation, and the diminution of the public revenue, is a consequence of both laws, but not their object.

If we were to compare the amount of sales, there being no regulation by license, and the amount of sales under a well-guarded license law, it would be very great, undoubtedly; but no one can ascertain it with any accuracy, — certainly this court cannot. A plain case of conflict must be proved.

This court, in the exercise of its high authority, has always acted upon this subject with caution. It has always required a plain case of unconstitutionality to be made out.

The plaintiff in error says, the question of conflict is a question of fact; but it is not shown that any town, except Cumberland, has refused to grant licenses.

Again; to render a license law valid, how many licenses must it provide for? One in each town, or how many, or one in each county? All license laws materially check importation, by diminishing consumption. What degree of check and restriction will render the law void, on the ground of conflict? Suppose the Rhode Island law prohibited sales as low as five gallons, or one gallon, or a quart; what principle will the court adopt?

License laws were in force in all the States at the time of the adoption of the constitution. No alteration of these laws has been made by the States, and they have never been, and are not now, complained of by the federal government. This shows that, by the understanding of all the parties to that instrument, these laws do not interfere with any of the powers of the federal government.

The true rule as to conflict is, not a partial check upon sales, or a partial diminution of the revenue. This involves the inquiry, how much check, how much diminution? Conflict is a prohibition of all sales. It is said the importation and payment of duties imply the right to sell, that the retail sale is indispensable to give value to the wholesale trade, and therefore a prohibition of the retail sale is void. Payment of duties gives no greater right than importation of a free article, tea or coffee.

But a license law prohibits the retail sale to every body but the party licensed, and this is agreed to be valid. The fact of prohibition, therefore, does not render the law void, but the extent of it. What must that extent be? How can the court ascertain the effect upon sales and importations, except the effect which is a necessary consequence of the law? or, in other words, how can they judge, except of an absolute prohibition of all sales? What means have they to ascertain the difference between the practical effects of one law and other, both being prohibitory, but prohibitory in different degrees?

In Brown v. State of Maryland, the true rule is laid down. When an import has been broken up, or has passed from the hands of the importer, it ceases to be an import. It has then passed into the mass of property of the State, and is subject to its authority for purposes of police, internal trade, and taxation.

Unless this be so, Congress may prescribe the police regulations of the States. They may prescribe the extent to which a restrictive regulation may be carried, in order to be constitutional.

We cannot overrate the importance of police powers to the States. The means of social improvement, the success of all institutions of learning and religion, depend on the preservation of this power. We look to the States for the exercise of their authority in aid of all institutions which tend to improve and elevate the moral and intellectual character of the people.

The doctrine of conflict must be expounded with reference to the principle of compromise on which the constitution is founded.

Congress may authorize the importation of an article which is very injurious to the health or morals of a State. The importer may perhaps sell in bulk; then the power of Congress is exhausted, and the power of the State begins. Upon such sale the property is mingled with the mass of the other property of the State, and subject to the State power, either to tax, to prohibit, or regulate, as its purpose of police or internal trade may require.

What does the internal trade consist in? In its own products, products of other States, and products of foreign nations. If the doctrine is true with regard to foreign products, it is equally so with regard to products of other States. Then the State power over the property of its own citizens, within its own territory, is limited to products of its own. There will be two kinds of property; one subject to the power of the State, and the other exempt from it.

Unless this be done, it is said the policy of Congress may be countervailed. We answer this by saying that, on the other hand, the police power of the States and the power over internal trade will be destroyed. It is not to be supposed that the States will countervail the policy of Congress merely to countervail it. The compromise of the constitution goes upon a different principle, and at all events the limit of the power of Congress cannot be exceeded in order more effectually to carry out its own policy. If this were a consolidated government, the difficulty would not exist. But it is a confederation of States, external relations are confided to federal government, whilst all domestic relations belong to the States. External policy may be affected by regulations of internal trade or police of the States. This results from the confederacy. Foreign commerce must be affected by internal commerce. Property becomes the subject of internal commerce when it has become incorporated with the mass of the property of the State. Regulations of internal commerce may affect foreign commerce, and foreign commerce may affect internal commerce. Both are valid, nevertheless. Regulations of internal trade may check importation of foreign goods, and the introduction of foreign goods may affect the internal träde and policy of the State. If both governments keep within their constitutional limits, there can be no collision or conflict. The laws of one may affect the operation of the laws of the other. Thus, the police laws of the States in restraining and partially prohibiting the sale of spirituous liquors may affect the operation of the act of Congress under which they are admitted. But this is no conflict. On the other hand, the act of Congress admitting spirituous liquors may countervail the policy of the States. But still there is no conflict. A case of conflict must arise from one government or the other exceeding its limits, and then the law of that government must yield which has exceeded its authority, whether federal or State. The provision of the constitution as to its supremacy, and the laws passed under it, is confined to laws passed in conformity to its powers.

ANDREW PEIRCE, JUNIOR, AND THOMAS W. PEIRCE, PLAINTIFFS IN ERROR, v. THE STATE OF NEW HAMPSHIRE.

THIS case originated in the Court of Common Pleas for the county of Strafford, and was carried to the Superior Court of Judicature for the First Judicial District of New Hampshire. The plaintiffs in error were indicted for that they did unlawfully, knowingly, wilfully, and without license therefor from the selectmen of said Dover, the same being the town where the defendants then resided, sell to one Aaron Sias one barrel of gin, at and for the price of $ 11.85, contrary to the form of the statute, c.

The counsel for the State introduced evidence to prove the sale of the gin, as set forth in the indictment; and it was proved, and admitted by the defendants, that they sold to said Aaron Sias, on the day alleged in the indictment, one barrel of American gin, for the price of $11.85, and took from said Sias his promissory note, including that sum. It appeared that it was part of the regular business of the defendants to sell ardent spirits in large quantities.

To sustain the prosecution, the counsel for the State relied on the statute of July 4, 1838, which is in these words, viz.: —

"An Act regulating the Sale of Wine and Spirituous Liquors. "Sect. 1. Be it enacted by the Senate and House of Representatives in General Court convened, That if any person shall, without license from the selectmen of the town or place where such person resides, sell any wine, rum, gin, brandy, or other spirits, in any quantity, or shall sell any mixed liquors, part of which are spirituous, such person, so offending, for each and every such offence, on conviction thereof, upon an indictment in the county wherein the offence may be committed, shall forfeit and pay a sum not exceeding fifty dollars, nor less than twenty-five dollars, for the use of such county.

"Sect. 2. And be it further enacted, that the third section of an act, passed July 7, 1827, entitled, `An act regulating licensed houses,' and other acts or parts of acts inconsistent with the provisions of this act, be, and the same hereby are, repealed.

"Approved July 4, 1838."

The counsel for the defendants moved the court to instruct the jury, that if the law of 1838, under which the respondents were indicted, was constitutional, the sale here was contrary to law, and the note of Sias was void, and that such a payment by note was no payment, and therefore there was no sale. But the court refused so to instruct the jury, but directed them, that, on the supposition the defendants could not recover the contents of the note, they might notwithstanding have violated the statute. The defendants' counsel then introduced evidence that the barrel of gin was purchased by the defendants in Boston, in the Commonwealth of Massachusetts, brought coastwise to the landing at Piscataqua Bridge, and from thence to the defendants' store, in Dover, and afterwards sold to Sias in the same barrel and in the same condition in which it was purchased in Massachusetts. And the defendants' counsel contended that the aforesaid statute of July 4, 1838, was unconstitutional and void, because the same is in violation of certain public treaties of the United States with Holland, France, and other countries, containing stipulations for the admission of spirits into the United States, and because it is repugnant to the two following clauses in the constitution of the United States, viz.: —

"No State shall, without the consent of the Congress, lay any imposts or duties on imports or exports, except what may be absolutely necessary for executing its inspection laws." "The Congress shall have power to regulate commerce with foreign nations, and among the several States, and with the Indian tribes."

And the defendants' counsel contended that the jury were the judges of the law as well as the fact in the case; that it was their duty to judge of the constitutionality of the act of July 4, 1838, and to form their own opinion upon that question; and that the court were not to instruct the jury relative to questions of law, as in civil cases, but were merely to give advice to the jury in matters of law. The court instructed the jury, that the position that the jaw were judges of the law as well as of the fact, as contended for by the defendants' counsel, was not correct, to the extent of the general terms in which it was stated; that the same rule existed in this respect in criminal cases which prevailed in civil cases; that it was the duty of the court to instruct the jury in relation to questions of law, and that the court was responsible for the correctness of the instructions given; and in case of conviction, if the instructions were wrong, the verdict might be set aside for that cause; but that the jury had the power to overrule the instructions of the court, and decide the law contrary to those instructions, through their power to give a general verdict of acquittal; and that if they did so, and acquitted the defendants, the court could not correct the matter if the jury had erred, because the defendants could not in such case be tried again; and that the circumstance, that the jury had thus the power to overrule the instructions of the court, in case of an acquittal, did not show that they had a right to judge of the law. The court further instructed the jury, that the statute of July 4, 1838, was not entirely void, if it might have an operation constitutionally in any case; and that, as far as this case was concerned, it could not be in violation of any treaty with any foreign power which had been referred to, permitting the introduction of foreign spirits into the United States, because the liquor in question here was proved to be American gin. The court further instructed the jury that this statute, as it regarded this case, was not repugnant to the clause in the constitution of the United States providing that no State shall, without the consent of Congress, lay any duty on imports or exports, because the gin in this case was not a foreign article, and was not imported into, but had been manufactured in, the United States. The court further instructed the jury, that this State could not regulate commerce between this and other States; that this State could not prohibit the introduction of articles from another State with such a view, nor prohibit a sale of them with such a purpose, but that, although the State could not make such laws with such views and for such purposes, she was not entirely forbidden to legislate in relation to articles introduced from foreign countries or from other States; that she might tax them the same as other property, and might regulate the sale to some extent; that a State might pass health and police laws which would, to a certain extent, affect foreign commerce, and commerce between the States; and that this statute was a regulation of that character, and constitutional. And the court further said, in conclusion (the sale being admitted, and the instructions of the court that the law, as applicable to this case, was constitutional, having been given), that nothing farther remained in this particular case, unless the jury saw fit to exercise the power that they possessed of overruling the instructions of the court, and giving a verdict contrary to those instructions; and that if they did so, and acquitted the defendants, the court could not set aside the verdict, even if an error had been committed.

The jury having returned a verdict, that the defendants were guilty, the defendants excepted to the foregoing instructions, and to what is said in conclusion of the charge as aforesaid, and filed this bill; which was sealed and allowed.

JOEL PARKER.

This judgment having been affirmed by the Superior Court of Judicature, a writ of error brought the case up to this court.

It was argued at a prior term, by Mr. Hale, for the plaintiffs in error, and Mr. Burke, for the State, and held until now under a curia advisare vult.

Mr. Hale, for the plaintiffs in error.

As the questions relating to the several interrogatories which were propounded to the jurors, and those which the court below refused to have put to them, and the question whether, in criminal cases, the jury are judges of the law as well as the fact, and every other question raised in the bill of exceptions to the ruling of the judge who tried the case, save the single one of the constitutionality of the law of New Hampshire, entitled "An act regulating the sale of wine and spirituous liquors," passed July 4, 1838, belonged appropriately to the superior court of that State finally to adjudicate upon, and are not supposed in this case to appertain to the jurisdiction of this court, I shall pass them over entirely, and proceed at once to the consideration of the only question which this case presents to this tribunal for decision. That question is, — "Is the act of the legislature of New Hampshire, above mentioned, in accordance with, or in contravention of, the constitution of the United States?"

The plaintiffs in error contend that it is repugnant to that clause of the constitution of the United States which provides that "no State shall, without the consent of the Congress, lay any imposts or duties on imports or exports, except what may be absolutely necessary for executing its inspection laws"; also, because it is repugnant to that clause which declares that "the Congress shall have power to regulate commerce with foreign nations, and among the several States and with the Indian tribes."

Believing that the whole ground covered by this case has been more than once considered by this court, fully and ably argued by eminent and distinguished counsel on both sides of the question, and so palpably and distinctly decided in divers cases, especially in Brown v. Maryland, 12 Wheat. 419, that it is not in the power of sophistry even to withdraw this law from that sphere of legislation which the decision in that case prohibited to the States, I trust I shall be considered as having fully discharged my duty to my clients, when I have briefly adverted to a very few of the many palpable reasons assigned by the court for the ground they then assumed, and which, it is confidently believed, will avail to the plaintiffs in error in the present case.

If this barrel of gin had been imported from a foreign country, could the State of New Hampshire have prohibited its introduction into their territory? The answer to this interrogatory is obvious and palpable. It will not for a moment be contended, that, while the constitution prohibits any State from laying any imposts or duties on imports or exports, the right is left to the several States to prohibit importations altogether. The power of regulating imports from foreign countries falls so directly and inevitably under the power to regulate commerce, that it has never been denied to belong to Congress. I shall proceed upon the assumption, that no one can controvert this plain proposition. If the State could not prohibit its importation from a foreign country, could the State prohibit its sale? Clearly not. Justice Story, in his Commentaries (vol. 2, § 1018), says: — "There is no difference, in effect, between a power to prohibit the sale of an article and a power to prohibit its introduction into the country. The one would be a necessary consequence of the other. No goods would be imported if none could be sold."

Chief Justice Marshall (Brown v. Maryland, 12 Wheat. 446), says: — "If this power reaches the interior of a State, and may be there exercised, it must be capable of authorizing the sale of those articles which it introduces. Commerce is intercourse; one of its most ordinary ingredients is traffic. It is inconceivable that the power to authorize this traffic, when given in the most comprehensive terms, with the intent that its efficacy should be complete, should cease at the point where its continuance is indispensable to its value. To what purpose should the power to allow importation be given, unaccompanied with the power to authorize a sale of the thing imported? Sale is the object of importation, and is an essential ingredient of that intercourse of which importation constitutes a part. It is as essential an ingredient, as indispensable to the existence of the entire thing, then, as importation itself. It must be considered as a component part of the power to regulate commerce. Congress has a right, not only to authorize importation, but to authorize the importer to sell."

Upon these authorities, I take it to be clear, that; if this barrel of gin had been imported from a foreign country, the State of New Hampshire neither could have prohibited its introduction into their territory, nor its sale while it remained in the situation in which it was imported.

The next question is, whether, it being an importation from a sister State instead of a foreign country, it is not equally protected by the constitution and laws of the Union; or, in other words, is commerce with foreign nations put on a better foundation by the constitution than commerce between the several States? There surely is nothing in the words of the constitution, nothing in the manner in which the constitution is expressed, to warrant such a position. The provisions applicable to both species of commerce are found in the same sentence, the one immediately following the other. But we are not left to conjecture on this subject. Chief Justice Marshall, in delivering the opinion of the court, in the case (Brown v. Maryland) before cited, says: — "It may be proper to add, that we suppose the principles laid down in this case to apply equally to importations from a sister State." Justice Story, in his Commentaries (vol. 2, § 1062), says: — "The importance of the power of regulating commerce among the States, for the purposes of the Union, is scarcely less than that of regulating it with sovereign States. The history of other nations furnishes the same admonition. In Switzerland, where the union is very slight, it has been found necessary to provide, that each canton shall be obliged to allow a passage to merchandise through its jurisdiction, without an augmentation of tolls. In Germany, it is a law of the empire, that the princes shall not lay tolls on customs or bridges, rivers or passages, without the consent of the emperor and Diet. But these regulations are but imperfectly obeyed, and great public mischiefs have followed. Indeed, without this power to regulate commerce among the States, the power of regulating foreign commerce would be incomplete and ineffectual. The very laws of the Union in regard to the latter, whether for revenue, for restriction, for retaliation, or for encouragement of domestic products or pursuits, might be evaded at pleasure, or rendered impotent. In short, in a practical view, it is impossible to separate the regulation of foreign commerce and domestic commerce among the States from each other. The same public policy applies to each; and not a reason can be assigned for confiding the power over the one, which does not conduce to establish the propriety of conceding the power over the other."

If these authorities can establish a position, then is an importation like the one in the case under consideration entitled to the same privileges and immunities, including, of course, the right to sell, that would have belonged to it if it had been an importation from a foreign country.

This law of New Hampshire has sometimes been supposed to be saved from the operation of the constitutional principles, as laid down by the court in the case of Brown v. Maryland, by the decision in New York v. Miln, 11 Peters, 102. An attentive examination of that case, so far as any analogy is found to exist between that and the present, will furnish no foundation upon which to base any such conclusion. Instead of overruling the doctrines sanctioned by the court, in the cases of Gibbons v. Ogden, 9 Wheat. 1, and Brown v. Maryland, the court say, that the question involved in the case of New York v. Miln is not the very point decided in either of the cases above referred to; but, on the contrary, the prominent facts of that case were in striking contrast with those which characterized the case of Gibbons v. Ogden; nor, say the court, is there the least likeness between the facts of this case and those of Brown v. Maryland. And the reasons upon which the decision in the last-named case rests are repeated and reaffirmed in the case of New York v. Miln. The court, in stating the difference between the two cases, say: — "Now it is difficult to perceive what analogy there can be between a case where the right of the State was inquired into, in relation to a tax imposed upon the sale of imported goods, and one where, as in this case, the inquiry is as to its right over persons within its acknowledged jurisdiction; the goods are the subject of commerce, the persons are not. The court did, indeed, extend the power to regulate commerce, so as to protect the goods imported from a State tax after they were landed, and were yet in bulk; but why? Because they were the subjects of commerce, and because, as the power to regulate commerce, under which the importation was made, implied a right to sell, that right was complete, without paying the State for a second right to sell, whilst the bales or packages were in their original form. But how can this apply to persons? They are not the subject 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." Keeping this palpable and most obvious distinction in view, and ascertaining what were the points raised and settled in the case of New York v. Miln, there is no danger of the mind being misled by any of the remarks of the court in delivering their opinion in that case. The State of New York passed a law, requiring the master of every vessel arriving in New York from any foreign port, or from a port of any of the States of the United States other than New York, under certain penalties, to make a report in writing, containing the names, ages, and last legal settlement of every person who shall have been on board the vessel commanded by him during the voyage. It was contended by the defendant in that case, that "the act of the legislature of New York aforesaid assumes to regulate trade and commerce between the port of New York and foreign ports, and is unconstitutional and void."

The court decided that it was not a regulation of commerce; that persons were not a subject of commerce, and that it did not come within the principles settled in Gibbons v. Ogden, or Brown v. Maryland.

Nor can a distinction be found between this case and that of Brown v. Maryland, from the fact, that in Maryland the importer was compelled to pay fifty dollars for his license, and in New Hampshire it does not appear that he is compelled to pay any thing. Chief Justice Marshall, in stating that case, says: — "The cause depends entirely on the question, whether the legislature of a State can constitutionally require the importer of foreign articles to take out a license from the State before he shall be permitted to sell a bale or package so imported."

To that inquiry the court by its decision gave a negative answer; and when they add, as the constitution most palpably authorized them to, that "the principles laid down in this case apply equally to importations from a sister State," it seems that they decided every principle involved in the case at bar, unless there be something peculiar in the subject-matter upon which the legislature of New Hampshire has legislated, viz. wine and spirituous liquor; upon which I propose to submit a few suggestions presently. The question was not as to the amount to be paid for the license, nor whether any thing was to be paid, but as to the right of the State to require it under any circumstances.

Now let us see what this act of the legislature of New Hampshire undertakes to do. It assumes that the State may prohibit, under severe penalties to every one within her limits, the entire commerce in wines and ardent spirits. No matter that we have treaties with foreign powers authorizing their importation and sale into the country; no matter that Congress have admitted them into the country under the general laws of the whole Union, and, to encourage the manufacture, have made such as are produced from certain specified substances entitled to debenture upon exportation; no matter that the government of this Union at this moment derives no inconsiderable portion of its revenue from the duties levied upon these proscribed articles of commerce; this act of New Hampshire subjects every individual who sells a barrel, hogshead, cargo, or any quantity, great or small, without a license from the selectmen of some one of her towns, to the ignominy and expense of a criminal prosecution, conviction, and fine or imprisonment.

Is there any thing in the nature of the object concerning which New Hampshire has legislated to constitute it an exception from these general provisions? It is worthy of notice, that a large proportion of the articles for the sale of which the laws of Maryland required a license, and which laws this court pronounced unconstitutional, consisted of various kinds of distilled spirituous liquors; and it did not occur to the distinguished counsellors engaged in that case, that there was any thing in that circumstance to call for the application of a rule of construction different from what was applied to other subjects of commerce.

The court below, in the case at bar, admit that the State of New Hampshire cannot regulate commerce between that and the other States; that they cannot prohibit the introduction of articles from another State, with such a view, nor prohibit the sale of them for such a purpose; but that a State might pass health and police laws, which would, to a certain extent, affect foreign commerce, and commerce between the States; and that this statute was a regulation of that character, and constitutional.

The doctrine of the right of a State to pass health and police laws, carried to the extent here claimed, would be a virtual abrogation of the constitution, and a total nullification of that power in the general government to regulate commerce, which was one of the chief objects proposed to be attained by the establishment of the federal constitution. Let us test this principle by some subject other than wine and ardent spirits. Many philanthropists and physicians contend that the use of tobacco is as injurious as that of intoxicating drink. Will it for a moment be supposed that therefore a State, or any number of States, may prohibit the introduction of tobacco within their borders, and make the selling of it an indictable offence? May one or more of the wool-growing States of this Union, under the right to make health and police regulations, prohibit the introduction of cotton into their limits, and make him who would sell it a felon, and then escape the condemnation so justly due to such an unwarrantable assumption of power, on the ground that it was more healthful for their citizens to be clad in woollen than in cotton garments? Not a few reformers of the present day believe and affirm that the use of tea and coffee is, in all cases, injurious; and if such a sect should momentarily acquire the ascendency in any of the State legislatures, may they render commerce in those articles criminal?

Another sect of reformers, by no means despicable in point of numbers or talents, honestly believe, and strenuously assert, that the use of animal food is an evil which ought not to be tolerated; but may a State, a majority of whose citizens entertain such an opinion, punish with fine and imprisonment the act of selling beef and pork, imported from a sister State?

May a State engaged in the whale fishery prohibit the introduction of tallow candles, and make the sale of them criminal on any such pretence, or a State interested in the manufacture of the latter article prohibit the introduction of oil, or sperm candles?

It may be urged that no such abuse of this power is to be apprehended. But an answer to such a suggestion is found given by that eminent and learned judge who delivered the opinion of the court in the case of Brown v. Maryland, where he says, — "All power may be abused. It might with equal justice be said, that no State would be so blind to its own interest as to lay duties on importation which would either prohibit or diminish its trade. Yet the framers of our constitution have thought this a power which no State ought to exercise." And Justice Story, in his Commentaries (vol. 2, § 1066), lays down this express limitation to the power of a State to pass inspection laws, health laws, c., — "that they do not conflict with the powers delegated to Congress." And Chief Justice Marshall says expressly, "that it cannot interfere with any regulation of commerce."

Let it not be forgotten that the oppressed and degraded condition of commerce was one of the most urgent and pressing reasons which induced the formation of the constitution. "Before that time each State regulated it with a single view to its own interest; and our disunited efforts to counteract their restrictions were rendered impotent by a want of combination. Congress, indeed, possessed the power of making treaties; but the inability of the federal government to enforce them had become so apparent as to render that power, in a great degree, useless. Those who felt the injury arising from this state of things, and those who were capable of estimating the influence of commerce on the prosperity of nations, perceived the necessity of giving the control over this important subject to a single government. It is not, therefore, matter of surprise, that the grant should be as extensive as the mischief, and should comprehend all foreign commerce, and all commerce between the States." — 2 Story's Commentaries, § 1054. This power, if it be permitted to the States, will be abused. There is no safety for the whole people in placing it anywhere save in those hands where the constitution has placed it. If, on any pretence, however specious, for the purpose of advancing any cause, however popular or praise-worthy, this function of the general government, so vital to its character, may be usurped by a State legislature, the barrier between the two powers is broken down, and the purposes of the Union itself defeated. Fanaticism never proposed a measure so wild and absurd, that specious and plausible arguments have not been devised to sustain the measures by which it would effect its object.

This case finds that the plaintiffs in error purchased this barrel of gin in Massachusetts. No law of any State, or of the Union, was violated by that act. They were, thus far, in the pursuit and prosecution of a lawful commerce. They brought it coastwise to the landing at Piscataqua Bridge (in New Hampshire), and from thence to their store in Dover. No law is yet broken. And then, in the same barrel, and in the same condition in which it was purchased in Massachusetts, and in which they imported it from a sister State, they sold it to Sias. If, as this court has already decided, the same principles apply to commerce between the States that apply to commerce with foreign nations, may it not, without arrogance or presumption, be asked, if human ingenuity can honestly distinguish this case from the one already decided by this court, and so often referred to?

Perhaps I owe an apology to this honorable court for urging upon them arguments so familiar and principles so well settled; but believing, as my clients do, that, instead of receiving, as they were entitled to, the protection of the government in their lawful business, they have been branded as criminals, their property taken, and their constitutional rights trampled upon, they have, in the last resort, appealed to this tribunal for that redress and protection against unconstitutional State legislation, to afford which so eminently belongs to this honorable court.

They rely with confidence upon the assurance that here, at least, law may be administered, right defended, and justice maintained, uncontaminated by the breath of a local and temporary diseased sentiment, which, in its misguided and abortive attempts at reform, essays to eradicate physical and moral evil from society, and corruption from the human heart, by the wondrous efficiency of legislative enactment. They rely with confidence upon that protection to commerce which this court, on divers occasions, have extended, though, in so doing, they have been under the necessity of pronouncing the legislation of more than one State invalid and unconstitutional. It was to protect commerce that this Union was established. Take away that power from the general government, and the Union cannot long survive.

Having thus referred the court to the positions which I suppose sustain my clients, — positions occupied and illustrated by the profound learning, deep research, and luminous reasoning of Marshall and Story, in their expositions of this branch of the constitution, — I leave this case, in the confidence that my clients, in common with all the other citizens of this whole country, will ever find (as they ever have in times past) in this court a full and ample protection for their constitutional rights, against which the waves of fanaticism, as well as of faction, may beat harmlessly.

Mr. Burke, for the State.

(The argument upon the two first points, respecting the rights of the jury, is omitted.)

III. The third and last point raised in this case is the following, viz.: —

That the court by whom this cause was tried instructed the jury that the act of the legislature of the State of New Hampshire, approved July 4, 1838, under which the plaintiffs in error were indicted, was not repugnant to the constitution of the United States, nor to any treaty between the United States and foreign nations.

The provisions of the constitution of the United States, to which the law of the State of New Hampshire is alleged to be repugnant, are in the following words: —

1. "No State shall, without the consent of Congress, lay any imposts or duties on imports or exports, except what may be absolutely necessary for executing its inspection laws." Art. 1, § 10, part of 2d clause.

2. "The Congress shall have power to regulate commerce with foreign nations, among the several States, and with the Indian tribes." Art. 1, § 8, clause 3.

The act before mentioned is also alleged to be repugnant "to certain public treaties of the United States with Holland, France, and other countries, containing stipulations for the admission of spirits into the United States."

By the admission of the plaintiffs in error on the trial, it appears that the "gin" alleged in the indictment to have been sold by them was "American gin."

Therefore, taxing the gin, or prohibiting its sale, except upon the terms of the act of the State of New Hampshire, before referred to, did not conflict with the clause of the constitution of the United States first cited above; because it was not an "import," nor an "export," in the sense of that provision of the constitution.

And for the same reason, taxing, or restricting its sale, did not conflict with the first member of the second clause of the constitution, above cited, which clothes Congress with the power "to regulate commerce with foreign nations"; nor with the last member of the clause, which empowers Congress to regulate commerce "with the Indian tribes"; nor with the public treaties of the United States with foreign nations.

If it conflict with any provision of the constitution, it is with the second member of the second clause above cited, which gives Congress the power to regulate commerce "among the several States"; and that, it is apprehended, is the only question of which this tribunal has cognizance in this case. But, before proceeding to the argument of this question, the supposed ground on which the plaintiffs in error rely will be briefly examined.

It is anticipated that the plaintiffs in error will rely mainly on the case of Brown v. The State of Maryland, reported in 12 Wheat. 419; 6 Cond. Rep. 554. It therefore becomes necessary to compare the facts of that case with the present, and to examine the principles laid down by Chief Justice Marshall in giving the opinion of the court.

That case was an indictment for selling "one package of foreign dry goods," contrary to an act of the legislature of the State of Maryland, requiring all "importers" of "foreign goods and commodities," selling the same by wholesale, in bulk, to take out a license, under a penalty of one hundred dollars, and the forfeiture of the amount of the license tax, which was fifty dollars, for a neglect to comply with the provisions of the act. The act of the legislature of Maryland was a revenue law, and a tax imposed upon the importer under the form of a license tax, a revenue tax, and not a police regulation to restrain the sale of an article which was deemed injurious to the health and morals of the people of that State. The persons taxed were the importers of foreign goods, and not the dealers in articles of domestic manufacture or production. The case, therefore, of Brown v. The State of Maryland is different in all its features from the case at bar. It differs from it in two most prominent features: —

1. The act of the legislature of New Hampshire, under which the plaintiffs in error were indicted, was a police regulation, and not a revenue law.

2. The commodity sold was not an article of foreign production, nor an "import," but was an article of American manufacture.

These two circumstances distinguish the case at bar widely from the case relied on by the plaintiffs in error. The reasoning, therefore, of the court in Brown v. Maryland will not apply to this case.

But it is apprehended, that, if the "gin" sold by the plaintiffs in error had been imported, themselves not being the importers, they could not sustain their side of the case on the principles laid down by the court in Brown v. Maryland. Chief Justice Marshall says, the article is exempt from the taxing power of a State "while remaining the property of the importer, in his warehouse, in the original form or package in which it was imported." "This state of things," he adds, "is changed if he [the importer] sells them, or otherwise mixes them up with the property of the State, by breaking up the packages and travelling with them as an itinerant peddler." In which case "the tax finds the article already incorporated with the mass of property by the act of the importer." He "has himself mixed them up in the common mass; and the law may take them as it finds them."

From these principles two deductions follow: —

1. That the article is exempt from the taxing power of the State while it is in the possession of the importer in bulk, and has not become incorporated with the general mass of property in the State.

2. When it has thus become incorporated with the mass of property in a State, it is subject to all the laws, restrictions, regulations, and burdens to which other descriptions of the mass of property are subject.

In the case at bar, on the supposition that the gin was originally imported, the sale of it by the importer to the plaintiffs in error, and its subsequent transportation into New Hampshire, was such an incorporation of it with the mass of property in the State of New Hampshire as to subject it to the taxing power and police regulations of the State, in the same manner and to the same extent to which all property within its jurisdiction was subject.

Again, it is admitted by the court in Brown v. Maryland, that the "police power" remains with the States. The act of the legislature of New Hampshire, under which the plaintiffs in error were indicted, is a portion of the police system of that State, and, according to Chief Justice Marshall, is not repugnant to the constitution of the United States.

But the plaintiffs in error may rely upon the obiter dictum of the court in Brown v. Maryland, that "we [the court] suppose the principles laid down in this case to apply equally to importations from a sister State." It cannot be supposed, however, that a remark thus casually and loosely expressed can be regarded as authority in the case at bar. If the gin had been foreign gin, and had been purchased by the plaintiffs in error in Massachusetts, and carried to New Hampshire, would it have been such an "importation from a sister State" as to exempt it from the taxing power or police regulations of the State of New Hampshire? And can the fact of its being "American gin," and of having been purchased in Massachusetts (whether manufactured there or not does not appear), give it greater privileges and exemptions in the State of New Hampshire, than if it had been manufactured in New Hampshire, carried to Massachusetts, and there purchased by the plaintiffs in error, and brought back by them to New Hampshire, and sold in the same vessel in which it was originally put up by the manufacturer? But this point will be more fully considered hereafter.

It may also be said, that the "gin" was purchased in Boston in the same barrel in which it was afterwards transported from Massachusetts to New Hampshire, and there sold. In other words, it was sold by the plaintiffs in error "in bulk," and therefore comes within the principles of the case of Brown v. Maryland, and could not be taxed by the laws of New Hampshire, nor its sale in any way regulated or restricted.

This position is not believed to be tenable. If it were, it would be impossible to prevent the evasion of the license laws of the State of New Hampshire. Ardent spirits could not be purchased in Massachusetts in vessels containing a less quantity than one barrel, — in vessels containing no more than a gallon, a quart, or a pint, and in that form carried into the State of New Hampshire, and sold in spite of the laws regulating the sale of spirituous liquors. It is believed that no such quibbling with, or evasion of, the laws of a State, can shelter itself under the provision of the constitution which grants to Congress the power "to regulate commerce among the several States."

But the case of Brown v. Maryland does not turn on the principle contended for. The taxing power of Maryland in that case seized hold of the commodity while it retained the character of an "import," and before it became incorporated with the genera mass of property in the State. In that state of the commodity, the court held that the taxing power of Maryland could not reach it. And one of the reasons assigned for the decision was, that the importer, by paying the duty upon the article to the United States, had purchased the right of selling it, of which he could not be deprived by the legislation of a State. In the case at bar, the plaintiffs in error had purchased no right to sell their gin by the payment of duties upon it; and, furthermore, it had become incorporated with the general mass of property in the State of New Hampshire.

But the true and only question involved in the case, and which is presented for the decision of this tribunal, is now approached.

Is the act of the legislature of New Hampshire regulating the sale of spirituous liquors, approved July 4, 1838, repugnant to that provision of the constitution of the United States which clothes congress with the power "to regulate commerce among the several States"?

If it should be regarded as a law whose object was revenue alone, it is believed then not to be repugnant to the provision of the constitution just cited. But, before proceeding further, it becomes necessary to inquire into the meaning of this provision of the constitution, and the extent of the power which it delegates to Congress. And, in order to comprehend it clearly, it will be necessary to recur to the circumstances in the history of the country, prior to the adoption of the present constitution, which led to the investment of this power in Congress. Previous to that time, it is well known that the States comprising the Union had separate and independent systems of revenue, commerce, and navigation. One of their sources of revenue was the levying of duties on foreign imports. They had the same power over the products of other States, when imported into their jurisdictions. Each State legislated for itself, in relation to duties, tonnage, and navigation. Of course the exercise of this right to regulate commerce, which each State then possessed, led to numerous conflicts with the legislation and the interests of other States, which did not fail to engender deep and malignant animosities, as the history of the times abundantly proves. Trade was restricted between the States, and the interchange of commodities, so essential to the interests and advancement of all, was greatly embarrassed. Hence was there an imperative necessity to wrest this dangerous power from the individual States, and vest it in the general government, in order to secure a uniformity of its exercise. In Gibbons v. Ogden, 9 Wheat. 1, this power is assumed by the court to be exclusively vested in Congress. The extent, therefore, of the power embraces the whole of it, subject, however, to the inspection laws, health laws, police regulations, c., c., which the court, in the case last cited, admit belong to the great mass of general legislation reserved to the States.

But this power extends only to the transportation and introduction of articles of commerce from one State into the limits of another. When a commodity is introduced within the jurisdiction of another State, it becomes subject to the laws of that State. In other words, each State has the power to regulate the internal traffic within its limits. This position is sustained in Gibbons v. Ogden, 9 Wheat. 1; Brown v. The State of Maryland, 12 Wheat. 419; City of New York v. Miln, 11 Peters, 102.

The power to regulate commerce among the States is supervisory. It was designed by the framers of the constitution to secure to the several States of the Union a free interchange of their products, and their transit through the territories of each, unencumbered with any burdens, duties, or taxes, except such as grow out of the inspection, health, and police regulations of the respective States. In other words, it was designed to secure free trade among the States. And in accordance with this view of the power of Congress to regulate commerce between the States is that provision in the constitution which prohibits to the States the power "to lay any duty on tonnage"; and also that provision of the constitution which prohibits any "regulation of commerce or revenue, which shall give preference to the `ports of one State over those of another.'" Thus it is the manifest intention of the constitution that the power of Congress over commerce between the States shall be supervisory merely, and exerted only to secure perfect freedom of trade and intercourse between the States. (See the Federalist, No. 42, p. 182, Wash. edition, 1831.) With this view, Congress has passed navigation laws, which secure to the vessels of one State the same privileges in the ports of another State which the vessels of the latter enjoy in its own ports.

But does the act of the legislature of New Hampshire interfere with this power of Congress "to regulate commerce among the States," as above defined? Does it prevent the unrestricted introduction of articles from other States into the State of New Hampshire, or their free transit through its territories? It may be safely affirmed that it does not.

It is stated in the bill of exceptions, that the gin sold by the plaintiffs in error was brought from Boston, the place of its purchase, "coastwise to the landing at Piscataqua Bridge, and from thence to the defendants' store in Dover." But can the mode by which the article was transported from Massachusetts, and introduced into the territory of New Hampshire, secure to it any constitutional protection? It will not be pretended. The gin would have been entitled to the same privileges and immunities if it had been transported by railroad, or by one of the numerous baggage-wagons which run to and from Massachusetts and New Hampshire. It cannot be a privileged article, because it was carried "coastwise" into the State of New Hampshire. But it may be confidently affirmed that Congress, under the general power "to regulate commerce among the several States," cannot secure to the productions and manufactures of one State, imported into another State for sale and consumption, greater privileges and exemptions than the productions and manufactures of the later would enjoy within its own jurisdiction. Congress cannot give to the productions and manufactures of Massachusetts, which are carried into New Hampshire for sale and consumption, greater privileges and exemptions than the productions and manufactures of the latter State would possess within the limits of its own territories. The "barrel of gin" purchased by the plaintiffs in error in Massachusetts, and carried to New Hampshire for sale and consumption, could not claim greater privileges and exemptions than a "barrel of gin" manufactured in the State of New Hampshire. The former must be subject to the same laws and regulations to which the latter would be subject. And it will hardly be pretended that the legislature of New Hampshire could not pass laws regulating the sale, within its own limits, of spirituous liquors, or of any other article manufactured within its own jurisdiction. And if Congress should attempt to interfere in such a case, it would be a most gross and palpable invasion of the reserved rights and the internal police of New Hampshire.

But it may be contended that the license law of the State of New Hampshire conflicts with the provision of the constitution which gives Congress power to regulate commerce among the States, because it is general and sweeping in its provisions, and prohibits the sale of wines and spirituous liquors in any quantity. Such a position, if assumed, cannot be maintained by any sound argument. It would make the constitutional question involved in this case depend upon the quantity of liquor sold, and not the thing itself. And where should be the limit of the law as to the quantity the sale of which it would be constitutional to prohibit? Would it be confined to a pint, a quart, or a gallon? And could the grave constitutional question raised in this case depend upon an absurdity so palpable, not to say ridiculous?

But the subjection of the productions of one State, when introduced for the purpose of sale and consumption within the territories of another, to the internal laws and regulations of the latter State, finds an analogy in the case of the citizens of one State going into the jurisdiction of another.

The constitution provides, that "the citizens of each State shall be entitled to all the privileges and immunities of the citizens of the several States." Citizens of one State, going into the jurisdiction of another State, can claim no exemption from its laws under this clause. If they enter the territory of another State merely to pass through it, the power of the law surrounds them to protect them from violence and to restrain them from crime. If they violate the laws of the State into whose territory they pass, they are subject, like all the citizens of that State, to all the penalties which the laws impose. If they remain in the State, they become subject to the taxing power, and all the burdens and restraints which its laws impose upon its own citizens. Can an article of commerce, produced in one State and carried into another for sale and consumption, claim greater privileges and exemptions in the latter State than citizens of the same State passing into another can claim? Such a position will hardly be ventured upon.

But, finally, it is contended for the State of New Hampshire, that the act of July 4, 1838, under which the plaintiffs in error were indicted, is a police regulation, which it was within the competency of the legislature of that State to enact, and is therefore not repugnant to the constitution of the United States.

In the case of Gibbons v. Ogden, 9 Wheat. 203, the court say, that "inspection laws, quarantine laws, health laws, of every description, as well as laws for regulating the internal commerce of a State, and those which respect turnpike-roads, ferries, c., are component parts of that immense mass of legislation which embraces every thing within the territory of a State not surrendered to the general government."

The law of the legislature of New Hampshire under consideration is a police regulation. Its design and object are to preserve the public morals and health of the State, and it is clearly within the recognized constitutional authority of the legislature of that State to enact. This power, it is admitted by the court, in the cases of Brown v. Maryland, Gibbons v. Ogden, and The City of New York v. Miln, all before cited, the States may exercise, even if it interfere with foreign commerce. The States may pass laws regulating the sale of gunpowder, which is clearly a police regulation, and necessary for the safety of the people, particularly in large cities. They may, also, by their health laws, intercept and prohibit the sale of an infected article, notwithstanding the duty may have been paid on it, and it may yet remain in the hands of the importer, in bulk, in the character of an import; a fortiori may they intercept and prohibit the sale of an infected article, produced in another State, and transported within the jurisdiction of the former for sale. For the same reason may the States, by their police regulations, prohibit the sale of obscene books, imported from a foreign country, notwithstanding the duty may have been paid on them, and they may remain in the original package. So, also, may they prohibit the sale of an obscene book written in this country, on which the copyright has been secured from the government of the United States, notwithstanding the fee required in such cases has been paid. Such cases, it is believed, would be analogous in principle to the power to regulate or prohibit the sale of spirituous liquors. On this point the following cases are relied on: Lunt's case, 6 Greenleaf's (Maine) Rep. 412; Beal, plaintiff in error, v. The State of Indiana; 4 Blackford, 107; King v. Cooper, plaintiff in error, 2 Scammon, 305.

And in confirmation of the authorities cited on this point, it may be observed that the license system was adopted in England at a very early period of her history, and has ever since composed a part of the police system of that kingdom. See Crabbe's History of English Law (London edit.), p. 477; see also the different enactments of the British Parliament, in 7 Evans's Statutes, pp. 1-32, title Ale-houses. Many of the English statutes relate to the sale of imported as well as domestic liquors. They, of course, conflict with the import as well as excise systems of that government; and yet, it is believed, they never have been called in question.

License regulations were also adopted by the provincial legislature of New Hampshire at an early period. See Provincial Laws of New Hampshire (edit. of 1761), pp. 64, 143.

Similar legislation, it is believed, has been adopted in nearly every State in the Union.

But if the law of the legislature of New Hampshire, now under consideration, shall not be regarded as a police regulation, it is clearly a law regulating the internal commerce of the State, and therefore constitutional, according to the doctrine laid down in Gibbons v. Ogden, before cited. It may also claim analogy with the laws relating to hawkers and peddlers, which, it is believed, have been enacted in some form in every State in the Union.

And, in conclusion, the remark will be ventured upon (although, perhaps, not appropriate in a mere argument), that the people of the State of New Hampshire, almost without distinction of age, sex, or condition, feel a deep and absorbing interest in the final issue of this question. Their sentiments concur with the sense of nearly the whole civilized world, which now concedes that the traffic in intoxicating liquors is a crime against society. It is disapproved by man, and stands condemned by the great moral Judge of the universe, whose purity cannot countenance such manifest and admitted wrong. It is the foul parent of immorality and crime, and the prolific source of unspeakable misery and sorrow to innumerable individuals and families. And is it to be contended that it is repugnant to the constitution of the United States to restrain and prohibit such inhuman traffic? — to extirpate a moral crime, which grows blacker and more hideous the longer it is contemplated, and the more its horrible effects become visible? And deeply anxious are the people of New Hampshire that this vicious trade shall receive no countenance from the judgment of the august and enlightened tribunal to whose arbitrament this cause is now most respectfully submitted.