LICENSE CASES, 46 U. S. 504 (1847) -- US Supreme Court Cases from Justia & Oyez

Laws of Massachusetts, providing that no person shall presume to be a retailer or seller of wine, brandy, rum, or other spirituous liquors in a less quantity than twenty-eight gallons, and that delivered and carried away all at one time, unless he is first licensed as a retailer of wine and spirits, and that nothing in the law should be so construed as to require the county commissioners to grant any licenses when in their opinion the public good does not require them to be granted --

Of Rhode Island, forbidding the sale of rum, gin, brandy &c., in a less quantity than ten gallons, although in this case the brandy which was sold was duly imported from France into the United States, and purchased by the party indicted in the original importer --

Of New Hampshire, imposing similar restrictions to the foregoing upon licenses, although in this case the article sold was a barrel of American gin, purchased in Boston and carried coastwise to the landing at Piscataqua Bridge and there sold in the same barrel --

All adjudged to be not inconsistent with any of the provisions of the Constitution of the United States or acts of Congress under it.

These cases were all brought up from the respective state courts by writs of error issued under the twenty-fifty section of the Judiciary Act, and were commonly known by the name of the License Cases.

Involving the same question, they were argued together, but by different counsel. When the decision of the Court was pronounced, it was not accompanied by any opinion of the Court as such. But six of the Justices gave separate opinions, each for himself. Four of them treated the cases collectively in one opinion, whilst the remaining two expressed opinions in the cases separately. Hence it becomes necessary for the reporter to make a statement in each case, and to postpone the opinions until the completion of all the statements. The arguments of counsel in each case will of course follow immediately after the statement in that case [arguments omitted in digital version]. They are placed in the order in which they are put by THE CHIEF JUSTICE in his opinion, but where the Justices have given separate opinions in each case, the order is observed which they themselves have chosen.

Page 46 U. S. 505

MR. CHIEF JUSTICE TANEY, one opinion, three cases, p. 46 U. S. 573.

MR. JUSTICE McLEAN three opinions.

No. 1. Thurlow v. Massachusetts, p. 46 U. S. 586.

No. 2. Peirce v. New Hampshire, p. 46 U. S. 593.

No. 3. Fletcher v. Rhode Island, p. 46 U. S. 596.

MR. JUSTICE CATRON, two opinions.

No. 1. Peirce v. New Hampshire, p. 46 U. S. 597.

No. 2. Thurlow v. Massachusetts, p. 46 U. S. 609.

MR. JUSTICE DANIEL, one opinion, three cases, p. 46 U. S. 611.

MR. JUSTICE WOODBURY, one opinion, three cases, p. 46 U. S. 618.

MR. JUSTICE GRIER, one opinion, three cases, p. 46 U. S. 631.

To begin with the case of

Thurlow v. Commonwealth of Massachusetts

This case was brought up from the Supreme Judicial Court of Massachusetts. The plaintiff in error was indicted and convicted, under the Revised statutes of the state, for selling liquor without a license. The indictment contained several specifications, but they were all similar to the first, which was as follows:

"The jurors for the Commonwealth of Massachusetts, upon their oath present that Samuel Thurlow, of Georgetown, in said county, trader, on the first day of May in the year of our Lord one thousand eight hundred and forty-two, at said Georgetown, he not being then and there first licensed as a retailer of wine and spirits, as provided in the forty-seventh chapter of the Revised statutes of said Commonwealth, and without any license therefor duly had according to law, did presume to be and was a retailer of wine, brandy, rum, and spirituous liquors to one Samuel Goodale in a less quantity than twenty-eight gallons, and that delivered and carried away all at one time, and did then and there sell to said Goodale two quarts of spirituous liquors, and no more, against the peace of said Commonwealth and the form of the statute in such case made and provided."

It becomes necessary to insert the forty-seventh chapter of the Revised statutes, and also an act passed in 1837. They are as follows:

"Revised statutes of Massachusetts, Chap. 47"

"The Regulation of Licensed Houses"

"Section 1. No person shall presume to be an innholder, common victualler, or seller of wine, brandy, rum, or any other spirituous liquor to be used in or about his house or other buildings unless he is first licensed as an innholder or common victualler, according to the provisions of this chapter, on pain of forfeiting one hundred dollars."

"Sec. 2. If any person shall sell any wine or spirituous liquor

Page 46 U. S. 506

or any mixed liquor, part of which is spirituous, to be used in or about his house or other buildings, without being duly licensed as an innholder or common victualler, he shall forfeit for each offense twenty dollars."

"Sec. 3. No person shall presume to be a retailer or seller of wine, brandy, rum or other spirituous liquors in a less quantity than twenty-eight gallons, and that delivered and carried away all at one time, unless he is [at] first licensed as a retailer of wine and spirits, as is provided in this chapter, on pain of forfeiting twenty dollars for each offense."

"Sec. 4. If any person licensed to be a retailer as aforesaid shall sell any of the above liquors, either mixed or unmixed, to be used in or about his house or shop, he shall forfeit for each offense twenty dollars."

"Sec. 5. Every innholder shall at all times be furnished with suitable provisions and lodging for strangers and travelers, and with stable room, hay, and provender for their horses and cattle, and if he shall not be at all times so provided, the county commissioners may revoke his license."

"Sec. 6. Every common victualler shall have all the rights and privileges and be subject to all the duties and obligations of innholders excepting that he shall not be required to furnish lodgings for travelers, nor stable room, hay, and provender for horses and cattle."

"Sec. 7. Every innholder and common victualler shall at all times have a board or sign affixed to his house, shop, cellar, or store, or in some conspicuous place near the same, with his name at large thereon, and the employment for which he is licensed, on pain of forfeiting twenty dollars."

"Sec. 8. If any innholder shall, when requested, refuse to receive and make suitable provisions for strangers and travelers, and their horses and cattle, he shall, upon conviction thereof before the court of common pleas, be punished by a fine not exceeding fifty dollars, and shall also, by order of the said court, be deprived of his license, and the court shall order the sheriff or his deputy forthwith to cause his sign to be taken down."

"Sec. 9. No innholder or common victualler shall have or keep in or about his house, or other buildings, yards, and gardens, or dependencies, any dice, cards, bowls, billiards, quoits, or other implements used in gaming, nor shall suffer any person resorting thither to use or exercise any of said games, or any other unlawful game or sport within his said premises, on pain of forfeiting ten dollars for every such offense."

"Sec. 10. Every person convicted of using or exercising any of the games aforesaid in or about any such house or building of an innholder or common victualler shall forfeit ten dollars."

"Sec. 11. No innholder or common victualler shall suffer any

Page 46 U. S. 507

person to drink to drunkenness or excess in his premises, nor suffer any minor or servant, travelers excepted, to have any strong drink there, on pain of forfeiting five dollars for each offense."

"Sec. 12. If any innholder or common victualler shall trust or give credit to any person for liquor, he shall lose and forfeit all the sums so trusted or credited, and all actions brought for such debt shall be utterly barred, and the defendant in such action may plead the matter specially, or may give it in evidence under the general issue."

"Sec. 13. If any common victualler shall keep open his house, cellar, shop, store, or place of business on any part of the Lord's day or evening, or at a later hour than ten of the o'clock in the evening of any other day of the week, and entertain any person therein by selling him any spirituous or strong liquor, he shall forfeit for each offense ten dollars."

"Sec. 14. When any person shall, by excessive drinking of spirituous liquors, so misspend, waste, or lessen his estate as thereby either to expose himself or his family to want or indigent circumstances or the town to which he belongs to expense for the maintenance of him or his family, or shall so habitually indulge himself in the use of spirituous liquors as thereby greatly to injure his health or endanger the loss thereof, the selectmen of the town in which such spendthrift lives shall, in writing under their hands, forbid all licensed innholders, common victuallers, and retailers of the same town to sell to him any spirituous or strong liquors aforesaid for the space of one year, and they may in like manner forbid the selling of any such liquors to the said spendthrift by the said licensed persons of any other town to which the spendthrift may resort for the same, and the city clerk of the City of Boston shall, under the direction of the mayor and aldermen thereof, issue a like prohibition as to any such spendthrift in the said city."

"Sec. 15. The said mayor and aldermen and said selectmen shall, in the same manner, from year to year, renew such prohibition as to all such persons as have not, in their opinion, reformed within the year, and if any innholder, common victualler, or retailer shall, during any such prohibition, sell to any such prohibited person any such spirituous liquor, he shall forfeit for each offense twenty dollars."

"Sec. 16. When the said mayor and aldermen, or selectmen, in execution of the foregoing provisions, shall have prohibited the sale of spirituous liquors to any such spendthrift, if any person shall, with a knowledge of said prohibition, give, sell, purchase, or procure for him in behalf of said prohibited person or for his use any such spirituous liquors, he shall forfeit for each offense twenty dollars."

"Sec. 17. The commissioners in the several counties may license, for the towns in their respective counties, as many persons to

Page 46 U. S. 508

be innholders or retailers therein as they shall think the public good may require, and the mayor and aldermen of the City of Boston may in like manner license innholders and retailers in the said city; and the Court of Common Pleas in the County of Suffolk may in like manner license innholders and retailers in the Town of Chelsea, and every license, either to an innholder or retailer, shall contain a specification of the street, lane, alley, or other place, and the number of the building, or some other particular description thereof, where such licensed person shall exercise his employment, and the license shall not protect any such person from the penalties provided in this chapter for exercising his employment in any other place than that which is specified in the license."

"Sec. 18. The Mayor and Aldermen of the City of Boston may license, for the said city, as many persons to be common victuallers as they shall think the public good may require, and every such license shall contain such a specification or description, as is mentioned in the preceding section, of the street or other place, and of the building where the licensed person shall exercise his employment, and the license shall not protect him from the penalties provided in this chapter for exercising it in any other place."

"Sec. 19. All licenses to any innholder, retailer, or common victualler shall expire on the first day of April in each year, but any license may be granted or renewed at any time during the preceding month of March, to take effect from the said first day of April, and after that day they may be granted for the remainder of the year, whenever the officers authorized to grant the same shall deem it expedient."

"Sec. 20. Every person, who shall be licensed as before provided in this chapter shall pay therefor to the Clerk of the City of Boston, the Clerk of the Court of Common Pleas for the County of Suffolk, or to the clerk of the commissioners of the respective counties so licensing said person, one dollar, which shall be paid by said clerks to the treasurers of their respective counties for the use of said counties, and such persons shall also pay twenty cents to the use of the said clerks respectively, and no other fee or excise whatever shall be taken from any person applying for or receiving a license under the provisions of this chapter."

"Sec. 21. Any license to an innholder, retailer, or common victualler may be so framed as to authorize the licensed person to sell wine, beer, ale, cider, or any other fermented liquors, and not to authorize him to sell brandy, rum, or any other spirituous liquor, and no excise or fee shall be required for such a license."

"Sec. 22. The clerk of the commissioners in the several counties shall seasonably, before the time for granting licenses in each year, transmit to the selectmen of every town within the county a list of the persons in such town who were licensed as innholders or retailers the preceding year. "

Page 46 U. S. 509

"Sec. 23. No license shall be granted or renewed to any person, unless he shall produce a certificate from the selectmen of the town for which he applies to be licensed, in substance as follows, to-wit:"

" We, the subscribers, a majority of the selectmen of the town of _____, do hereby certify that _____ has applied to us to be recommended as [here expressing the employment, and a particular description of the place for which the license is applied for] in the said town, and that, after mature consideration had thereon, at a meeting held for that purpose, at which we were each of us present, we are of opinion that the petition of said _____ be granted, he being, to the best of our knowledge and behalf, a person of good moral character."

"Sec. 24. Any person, producing such certificate of the selectmen shall be heard and his application decided upon either on a motion made orally by himself or his counsel or upon a petition in writing, as he shall elect."

"Sec. 25. If the selectmen of any town shall unreasonably neglect or refuse to make and deliver such a certificate, either for the original granting or the renewal of a license, the person aggrieved thereby may apply for a license to the commissioners, first giving twenty-four hours' notice to a majority of the said selectmen of his intended application, so that they may appear, if they see fit, to object thereto, and if on such application it shall appear that the said selectmen did unreasonably neglect or refuse to give the said certificate, and that the public good requires that the license should be granted, the commissioners may grant the same."

"Sec. 26. All the fines imposed by this chapter may be recovered by indictment, to the use of the county where the offense is committed, and when the fine does not exceed twenty dollars, the offense may be prosecuted before a justice of the peace, subject to the right of appeal to the court of common pleas, as in other cases."

"Sec. 27. When any person shall be convicted under the provisions of this chapter and shall fail to pay the fine awarded against him, he may be imprisoned in the common jail for a time not exceeding ninety days, at the discretion of the court or justice before whom the trial may be had."

"Sec. 28. All prosecutions under the provisions of this chapter for offenses committed in the City of Boston (excepting where the fine exceeds twenty dollars) may be heard and determined in the police court, subject to the right of appeal to the municipal court, but the said police court shall not have power in any such case to sentence any person to imprisonment except as provided in the preceding section."

"Sec. 29. Any person licensed under the provisions of this chapter who shall have been twice before convicted of a breach of any of the said provisions shall thereupon, in addition to the

Page 46 U. S. 510

penalties before provided, be liable to a further punishment by imprisonment in the common jail for a time not exceeding ninety days, at the discretion of the court before whom the trial may be had."

"Acts of 1837, Chapter 242"

"An act concerning Licensed Houses and the Sale of Intoxicating Liquors"

"Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:"

"Section 1. No licensed innholder or other person shall sell any intoxication liquor on Sunday, on pain of forfeiting twenty dollars for each offense, to be recovered in the manner and for the use provided in the twenty-sixth section of the forty-seventh chapter of the Revised statutes."

"Sec. 2. Any license to an innholder or common victualler may be so framed as to authorize the licensed person to keep an inn or victualling house without authority to sell any intoxicating liquor, and no excise or fee shall be required for such license, provided that nothing contained in this act or in the forty-seventh chapter of the Revised Statutes shall be so construed as to require the county commissioners to grant any licenses when in their opinion the public good does not require them to be granted."

"Sec. 3. Any person who shall have been licensed according to the provisions of the forty-seventh chapter of the Revised statutes or of this act, and who shall have been twice convicted of a breach of this act or of that chapter, shall, on such second conviction, in addition to the penalties prescribed for such offense, be adjudged to have forfeited his license."

"Sec. 4. Any person who shall have been three times convicted of a breach of this act or of the forty-seventh chapter of the Revised statutes shall, upon such third conviction, in addition to the penalties in this act and said chapter provided, be liable to be imprisoned in the common jail for a time not exceeding ninety days, at the discretion of the court before whom the trial may be had."

"Sec. 5. The Secretary of this Commonwealth shall cause a condensed summary of all laws relating to innholders, retailers, and licensed houses to be printed for the use of this Commonwealth, and he shall supply the county commissioners for the several counties and such other officers as by law are authorized to grant licenses with the same, and the said commissioners or other officers, whenever they grant any license, shall furnish each person so licensed with one copy of said license laws, to the end that such person may know to what duties, restrictions, and liabilities he is subjected by law."

"[Approved by the governor, April 20, 1837.] "

Page 46 U. S. 511

A conviction having taken place under the indictment upon these statutes, the defendant filed several exceptions, of which it is material to notice only the following:

"2. It appeared upon the trial that some of the sales charged in the indictment were of foreign liquors, and his Honor directed the jury that the license law of this Commonwealth applied as well to imported spirits as to domestic, and that this Commonwealth could constitutionally control the sale of foreign spirits by retail, and that said law is not inconsistent with Constitution or revenue laws of the United States. To this ruling also the defendant excepts."

The court below allowed this exception, together with all the others, upon which the case was removed to the Supreme Judicial Court. But that court overruled the exceptions and ordered judgment to be entered upon the verdict.

Mr. Hallett, the counsel for Thurlow, then applied for and obtained a writ of error to bring the case to the Supreme Court of the United States upon the following allegation of error, viz.:

"That the several acts of the Legislature of Massachusetts concerning licensed houses and the sale of intoxicating liquors, and especially the acts which are hereto appended and set out as part of the record in the said cause, upon which said judgment was founded, and also the opinion and judgment of said Supreme Judicial Court of Massachusetts, in the application and construction of said acts to the sales of imported foreign liquors and spirits by the said Thurlow, are repugnant to and inconsistent with the provisions of the Constitution, treaties, and laws of the United States insofar as the said acts, and the construction thereon by the said Supreme Judicial Court of Massachusetts, prohibit, restrain, control, or prevent the sale of imported wines and spirituous liquors by retail or otherwise in the said State of Massachusetts, and are therefore void."

Upon the writ of error thus issued, the case came up to this Court.

Page 46 U. S. 540

"Joel Fletcher, Plaintiff in error v. 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 39 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 has 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. "

Page 46 U. S. 541

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.

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 eight 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 defense and general

Page 46 U. S. 542

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 defense, 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"

Page 46 U. S. 554

"Andrew Peirce, Junior, and Thomas W. Peirce, Plaintiffs in error v. 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, willfully, and without license therefore 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. "

Page 46 U. S. 555

"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"

" Sec. 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 offense, on conviction thereof, upon an indictment in the county wherein the offense 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."

" Sec. 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 having 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

Page 46 U. S. 556

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 was the judge of the law as well as the fact in the case, that it was its duty to judge of the constitutionality of the Act of July 4, 1838, and to form its own opinion upon that question, and that the court was not to instruct the jury relative to questions of law, as in civil cases, but was merely to give advice to the jury in matters of law. The court instructed the jury that the position that the jury 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 give, 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

Page 46 U. S. 557

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.

Page 46 U. S. 573

MR. CHIEF JUSTICE TANEY.

In the cases of Thurlow v. State of Massachusetts, of Fletcher v. Rhode Island, and of Peirce v. State of New Hampshire, the judgments of the respective state courts are severally affirmed.

The Justices of this Court do not, however, altogether agree in the principles upon which these cases are decided, and I therefore proceed to state the grounds upon which I concur in affirming the judgments. The first two of these cases depend upon precisely the same principles, and although the case against the State of New Hampshire differs in some respects from the others, yet there are important principles common to all of them, and on that account it is more convenient to consider them together. Each of the cases has arisen upon state laws, passed for the purpose of discouraging the use of ardent spirits within their respective territories, by prohibiting their sale in small quantities, and without licenses previously obtained from the state authorities. And the validity of each of them has been drawn in question, upon the ground that it is repugnant to that clause of the Constitution of the United States which confers upon Congress the power to regulate commerce with foreign nations and among the several states.

The cases have been separately and fully and ably argued, and the questions which they involve are undoubtedly of the highest importance. But the construction of this clause in the Constitution has been so fully discussed at the bar and in the opinions delivered by the court in former cases that scarcely anything can be suggested at this day calculated to throw much additional light upon the subject or any argument offered which has not heretofore been considered and commented on, and which may not be found in the reports of the decisions of this Court.

It is not my purpose to enter into a particular examination of the various passages in different opinions of the Court or of some of its members in former cases which have been referred to by counsel and relied upon as supporting the construction of the Constitution for which they are respectively contending. And I am the less inclined to do so because I think these controversies often arise from looking to detached passages in the opinions, where general expressions are sometimes used which, taken by themselves, are susceptible of a construction that the Court never intended should be given to them, and which in some instances would render different portions of the opinion inconsistent with each other. It is only by looking to the case under consideration at the time, and taking the whole opinion together, in all its bearings, that we can correctly understand the judgment of the Court.

The Constitution of the United States declares that that Constitution and the laws of the United States which shall be made in

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pursuance thereof and all treaties made or which shall be made under the authority of the United States shall be the supreme law of the land. It follows that a law of Congress regulating commerce with foreign nations or among the several states is the supreme law, and if the law of a state is in conflict with it, the law of Congress must prevail and the state law cease to operate so far as it is repugnant to the law of the United States.

It is equally clear that the power of Congress over this subject does not extend further than the regulation of commerce with foreign nations and among the several states, and that beyond these limits the states have never surrendered their power over trade and commerce, and may still exercise it free from any controlling power on the part of the general government. Every state, therefore, may regulate its own internal traffic, according to its own judgment and upon its own views of the interest and wellbeing of its citizens.

I am not aware that these principles have even been questioned. The difficulty has always arisen on their application, and that difficulty is now presented in the Rhode Island and Massachusetts cases, where the question is how far a state may regulate or prohibit the sale of ardent spirits, the importation of which from foreign countries has been authorized by Congress. Is such a law a regulation of foreign commerce or of the internal traffic of the state?

It is unquestionably no easy task to mark by a certain and definite line the division between foreign and domestic commerce and to fix the precise point in relation to every important article where the paramount power of Congress terminates and that of the state begins. The Constitution itself does not attempt to define these limits. They cannot be determined by the laws of Congress or the states, as neither can by its own legislation enlarge its own powers or restrict those of the other. And as the Constitution itself does not draw the line, the question is necessarily one for judicial decision and depending altogether upon the words of the Constitution.

This question came directly before the court for the first time in the case of Brown v. State of Maryland, 12 Wheat. 419. And the Court there held that an article authorized by a law of Congress to be imported continued to be a part of the foreign commerce of the country while it remained in the hands of the importer for sale in the original bale, package, or vessel in which it was imported, that the authority given to import necessarily carried with it the right to well the imported article in the form and shape in which it was imported, and that no state, either by direct assessment or by requiring a license from the importer before he was permitted to sell, could impose and burden upon him or the property imported beyond what the law of Congress had itself imposed, but that when the original package was broken up for use or for retail by the importer,

Page 46 U. S. 575

and also when the commodity had passed from his hands into the hands of a purchaser, it ceased to be an import, or a part of foreign commerce, and became subject to the laws of the state, and might be taxed for state purposes, and the sale regulated by the state, like any other property. This I understand to be substantially the decision in the case of Brown v. State of Maryland, drawing the line between foreign commerce, which is subject to the regulation of Congress, and internal or domestic commerce, which belongs to the states and over which Congress can exercise no control.

I argued the case in behalf of the state, and endeavored to maintain that the law of Maryland, which required the importer as well as other dealers to take out a license before he could sell, and for which he was to pay a certain sum to the state, was valid and constitutional, and certainly I at that time persuaded myself that I was right, and thought the decision of the Court restricted the powers of the state more than a sound construction of the Constitution of the United States would warrant. But further and more mature reflection has convinced me that the rule laid down by the Supreme Court is a just and safe one, and perhaps the best that could have been adopted for preserving the right of the United States on the one hand, and of the states on the other, and preventing collision between them. The question, I have already said, was a very difficult one for the judicial mind. In the nature of things, the line of division is in some degree vague and indefinite, and I do not see how it could be drawn more accurately and correctly, or more in harmony with the obvious intention and objected of this provision in the Constitution. Indeed, goods imported, while they remain in the hands of the importer in the form and shape in which they were brought into the country, can in no just sense be regarded as a part of that mass of property in the state usually taxed for the support of the state government. The immense amount of foreign products used and consumed in this country are imported, landed, and offered for sale in a few commercial cities, and a very small portion of them are intended or expected to be used in the state in which they are imported. A great (perhaps the greater) part imported in some of the cities is not owned or brought in by citizens of the state, but by citizens of other states or foreigners. And while they are in the hands of the importer for sale in the form and shape in which they were introduced and in which they are intended to be sold, they may be regarded as merely in transitu, and on their way to the distant cities, villages, and country for which they are destined and where they are expected to be used and consumed and for the supply of which they were in truth imported. And a tax upon them while in this condition, for state purposes, whether by direct assessment or indirectly by requiring a license to sell, would be hardly more justifiable in principle

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than a transit duty upon the merchandise when passing through a state. A tax in any shape upon imports is a tax on the consumer by enhancing the price of the commodity. And if a state is permitted to levy it in any form, it will put it in the power of a maritime importing state to raise a revenue for the support of its own government from citizens of other states, as certainly and effectually as if the tax was laid openly and without disguise as a duty on imports. Such a power in a state would defeat one of the principal objects of forming and adopting the Constitution. It cannot be done directly in the shape of a duty on imports, for that is expressly prohibited. And as it cannot be done directly, it could hardly be a just and sound construction of the Constitution which would enable a state to accomplish precisely the same thing under another name and in a different form.

Undoubtedly a state may impose a tax upon its citizens in proportion to the amount they are respectively worth, and the importing merchant is liable to this assessment like any other citizen, and is chargeable according to the amount of his property, whether it consists of money engaged in trade, or of imported goods which he proposes to sell, or any other property of which he is the owner. But a tax of this description stands upon a very different footing from a tax on the thing imported while it remains a part of foreign commerce and is not introduced into the general mass of property in the state. Nor, indeed, can it even influence materially the price of the commodity to the consumer, since foreigners, as well as citizens of other states, who are not chargeable with the tax, may import goods into the same place and offer them for sale in the same market, and with whom the resident merchant necessarily enters into competition.

Adopting, therefore, the rule as laid down in Brown v. State of Maryland, I proceed to apply it to the cases of Massachusetts and Rhode Island. The laws of Congress regulating foreign commerce authorize the importation of spirits, distilled liquors, and brandy, in casks or vessels not containing less than a certain quantity, specified in the laws upon this subject. Now if the state laws in question came in collision with those acts of Congress and prevented or obstructed the importation or sale of these articles by the importer in the original cask or vessel in which they were imported, it would be the duty of this Court to declare them void.

It has indeed been suggested that if a state deems the traffic in ardent spirits to be injurious to its citizens and calculated to introduce immorality, vice, and pauperism into the state, it may constitutionally refuse to permit its importation notwithstanding the laws of Congress, and that a state may do this upon the same principles that it may resist and prevent the introduction of disease, pestilence, or pauperism from abroad. But it must be remembered that disease, pestilence, and pauperism are not subjects of commerce,

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although sometimes among its attendant evils. They are not things to be regulated and trafficked in, but to be prevented, as far as human foresight or human means can guard against them. But spirits and distilled liquors are universally admitted to be subjects of ownership and property, and are therefore subjects of exchange, barter, and traffic, like any other commodity in which a right of property exists. And Congress, under its general power to regulate commerce with foreign nations, may prescribe what article of merchandise shall be admitted and what excluded, and may therefore admit, or not, as it shall deem best, the importation of ardent spirits. And inasmuch as the laws of Congress authorize their importation, no state has a right to prohibit their introduction.

But I do not understand the law of Massachusetts or Rhode Island as interfering with the trade in ardent spirits while the article remains a part of foreign commerce, and is in the hands of the importer for sale, in the cask or vessel in which the laws of Congress authorize it to be imported. These state laws act altogether upon the retail or domestic traffic within their respective borders. They act upon the article after it has passed the line of foreign commerce and become a part of the general mass of property in the state. These laws may indeed discourage imports and diminish the price which ardent spirits would otherwise being. But although a state is bound to receive and to permit the sale by the importer of any article of merchandise which Congress authorizes to be imported, it is not bound to furnish a market for it nor to abstain from the passage of any law which it may deem necessary or advisable to guard the health or morals of its citizens, although such law may discourage importation, or diminish the profits of the importer, or lessen the revenue of the general government. And if any state deems the retail and internal traffic in ardent spirits injurious to its citizens and calculated to produce idleness, vice, or debauchery, I see nothing in the Constitution of the United States to prevent it from regulating and restraining the traffic or from prohibiting it altogether if it thinks proper. Of the wisdom of this policy it is not my province or my purpose to speak. Upon that subject each state must decide for itself. I speak only of the restrictions which the Constitution and laws of the United States have imposed upon the states. And as these laws of Massachusetts and Rhode Island are not repugnant to the Constitution of the United States, and do not come in conflict with any law of Congress passed in pursuance of its authority to regulate commerce with foreign nations and among the several states, there is no ground upon which this Court can declare them to be void.

I come now to the New Hampshire case, in which a different principle is involved -- the question, however, arising under the same clause in the Constitution and depending on its construction.

The law of New Hampshire prohibits the sale of distilled spirits

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in any quantity without a license from the selectmen of the town in which the party resides. The plaintiffs in error, who were merchants in Dover, in New Hampshire, purchased a barrel of gin in Boston, brought it to Dover, and sold it in the cask in which it was imported without a license from the selectmen of the town. For this sale they were indicted, convicted, and fined under the law above mentioned.

The power to regulate commerce among the several states is granted to Congress in the same clause and by the same words as the power to regulate commerce with foreign nations, and is coextensive with it. And according to the doctrine in Brown v. Maryland, the article in question, at the time of the sale, was subject to the legislation of Congress.

The present case, however, differs from Brown v. State of Maryland in this -- that the former was one arising out of commerce with foreign nations, which Congress had regulated by law, whereas the present is a case of commerce between two states, in relation to which Congress has not exercised its power. Some acts of Congress have indeed been referred to in relation to the coasting trade. But they are evidently intended merely to prevent smuggling, and do not regulate imports or exports from one state to another. This case differs also from the cases of Massachusetts and Rhode Island because in these two cases, the laws of the states operated upon the articles after they had passed beyond the limits of foreign commerce, and consequently were beyond the control and power of Congress. But the law of New Hampshire acts directly upon an import from one state to another while in the hands of the importer for sale, and is therefore a regulation of commerce, acting upon the article while it is within the admitted jurisdiction of the general government and subject to its control and regulation.

The question therefore brought up for decision is whether a state is prohibited by the Constitution of the United States from making any regulations of foreign commerce or of commerce with another state, although such regulation is confined to its own territory and made for its own convenience or interest and does not come in conflict with any law of Congress. In other words, whether the grant of power to Congress is of itself a prohibition to the states and renders all state laws upon the subject null and void. This is the question upon which the case turns, and I do not see how it can be decided upon any other ground, provided we adopt the line of division between foreign and domestic commerce as marked out by the court in Brown v. State of Maryland. I proceed, therefore, to state my opinion upon it.

It is well known that upon this subject a difference of opinion has existed, and still exists, among the members of this Court. But with every respect for the opinion of my brethren with whom I

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do not agree, it appears to me to be very clear that the mere grant of power to the general government cannot, upon any just principles of construction, be construed to be an absolute prohibition to the exercise of any power over the same subject by the states. The controlling and supreme power over commerce with foreign nations and the several states is undoubtedly conferred upon Congress. Yet in my judgment, the state may nevertheless, for the safety or convenience of trade or for the protection of the health of its citizens, make regulations of commerce for its own ports and harbors and for its own territory, and such regulations are valid unless they come in conflict with a law of Congress. Such evidently I think was the construction which the Constitution universally received at the time of its adoption, as appears from the legislation of Congress and of the several states, and a careful examination of the decisions of this Court will show that so far from sanctioning the opposite doctrine, they recognize and maintain the power of the states.

The language in which the grant of power to the general government is made certainly furnishes no warrant for a different construction, and there is no prohibition to the states. Neither can it be inferred by comparing the provision upon this subject with those that relate to other powers granted by the Constitution to the general government. On the contrary, in many instances, after the grant is made, the Constitution proceeds to prohibit the exercise of the same power by the states in express terms -- in some cases absolutely, in others without the consent of Congress. And if it was intended to forbid the states from making any regulations of commerce, it is difficult to account for the omission to prohibit it when that prohibition has been so carefully and distinctly inserted in relation to other powers, where the action of the state over the same subject was intended to be entirely excluded. But if, as I think, the framers of the Constitution (knowing that a multitude of minor regulations must be necessary, which Congress amid its great concerns could never find time to consider and provide) intended merely to make the power of the federal government supreme upon this subject over that of the states, then the omission of any prohibition is accounted for, and is consistent with the whole instrument. The supremacy of the laws of Congress, in cases of collision with state laws, is secured in the article which declares that the laws of Congress, passed in pursuance of the powers granted, shall be the supreme law; and it is only where both governments may legislate on the same subject that this article can operate. For if the mere grant of power to the general government was in itself a prohibition to the states, there would seem to be no necessity for providing for the supremacy of the laws of Congress, as all state laws upon the subject would be ipso facto void, and there could therefore be no such thing as conflicting laws, nor any question

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about the supremacy of conflicting legislation. It is only where both may legislate on the subject that the question can arise.

I have said that the legislation of Congress and the states has conformed to this construction from the foundation of the government. This is sufficiently exemplified in the laws in relation to pilots and pilotage, and the health and quarantine laws.

In relation to the first, they are admitted on all hands to belong to foreign commerce, and to be subject to the regulations of Congress under the grant of power of which we are speaking. Yet they have been continually regulated by the maritime states as fully and entirely since the adoption of the Constitution as they were before, and there is but one law of Congress making any specific regulation upon the subject, and that passed as late as 1837, and intended, as it is understood, to alter only a single provision of the New York law, leaving the residue of its provisions entirely untouched. It is true that the act of 1789 provides that pilots shall continue to be regulated by the laws of the respective states then in force or which may thereafter be passed until Congress shall make provision on the subject. And undoubtedly Congress had the power, by assenting to the state laws then in force, to make them its own and thus make the previous regulations of the states the regulations of the general government. But it is equally clear that as to all future laws by the states, if the Constitution deprived them of the power of making any regulations on the subject, an act of Congress could not restore it. For it will hardly be contended that an act of Congress can alter the Constitution and confer upon a state a power which the Constitution declares it shall not possess. And if the grant of power to the United States to make regulations of commerce is a prohibition to the states to make any regulation upon the subject, Congress could no more restore to the states the power of which it was thus deprived than it could authorize them to coin money, or make paper money a tender in the payment of debts, or to do any other act forbidden to them by the Constitution. Every pilot law in the commercial states has, it is believed, been either modified or passed since the act of 1789 adopted those then in force, and the provisions since made are all void if the restriction on the power of the states now contended for should be maintained, and the regulations made, the duties imposed, the securities required, and penalties inflicted by these various state laws are mere nullities, and could not be enforced in a court of justice. It is hardly necessary to speak of the mischiefs which such a construction would produce to those who are engaged in shipping, navigation, and commerce.

Up to this time, their validity has never been questioned. On the contrary, they have been repeatedly recognized and upheld by the decisions of this Court, and it will be difficult to show how this can be done except upon the construction of the Constitution which I am now maintaining.

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So also in regard to health and quarantine laws. They have been continually passed by the states ever since the adoption of the Constitution, and the power to pass them recognized by acts of Congress, and the revenue officers of the general government directed to assist in their execution. Yet all of these health and quarantine laws are necessarily, in some degree, regulations of foreign commerce in the ports and harbors of the state. They subject the ship and cargo and crew to the inspection of a health officer appointed by the state; they prevent the crew and cargo from landing until the inspection is made, and destroy the cargo if deemed dangerous to health. And during all this time, the vessel is detained at the place selected for the quaranting ground by the state authority. The expenses of these precautionary measures are also usually, and I believe universally, charged upon the master, the owner, or the ship, and the amount regulated by the state law, and not by Congress. Now so far as these laws interfere with shipping, navigation, or foreign commerce or impose burdens upon either of them, they are unquestionably regulations of commerce. Yet, as I have already said, the power has been continually exercised by the states, has been continually recognized by Congress ever since the adoption of the Constitution and constantly affirmed and supported by this Court whenever the subject came before it.

The decisions of this Court will also, in my opinion, when carefully examined, be found to sanction the construction I am maintaining. It is not my purpose to refer to all of the cases in which this question has been spoken of, but only to the principal and leading ones; and --

First, to Gibbons v. Ogden, because this is the case usually referred to and relied on to prove the exclusive power of Congress and the prohibition to the states. It is true that one or two passages in that opinion, taken by themselves and detached from the context, would seem to countenance this doctrine. And indeed it has always appeared to me that this controversy has mainly arisen out of that case, and that this doctrine of the exclusive power of Congress, in the sense in which it is now contended for, is comparatively a modern one and was never seriously put forward in any case until after the decision of Gibbons v. Ogden, although it has been abundantly discussed since. Still it seems to me to be clear upon a careful examination of that case that the expressions referred do not warrant the inference drawn from them, and were not used in the sense imputed to them; and that the opinion in that case, when taken altogether and with reference to the subject matter before the Court, establishes the doctrine that a state may, in the execution of its powers of internal police, make regulations of foreign commerce, and that such regulations are valid unless they come into collision with a law of Congress. Upon examining that opinion, it will be seen that the Court, when it uses the expressions

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which are supposed to countenance the doctrine of exclusive power in Congress, is commenting upon the argument of counsel in favor of equal powers on this subject in the states and the general government, where neither party is bound to yield to the other, and is drawing the distinction between cases of concurrent powers and those in which the supreme or paramount power was granted to Congress. It therefore very justly speaks of the states as exercising their own powers in laying taxes for state purposes, although the same thing is taxed by Congress, and as exercising the powers granted to Congress when they make regulations of commerce. In the first case, the state power is concurrent with that of the general government -- is equal to it, and is not bound to yield. In the second, it is subordinate and subject to the superior and controlling power conferred upon Congress. And it is solely with reference to this distinction, and in the midst of this argument upon it, that the Court uses the expressions which are supposed to maintain an absolute prohibition to the states. But it certainly did not mean to press the doctrine to that extent. For it does not decide the case on that ground (although it would have been abundantly sufficient, if the Court had entertained the opinion imputed to it), but, after disposing of the argument which had been offered in favor of concurrent powers, it proceeds immediately, in a very full and elaborate argument, to show that there was a conflict between the law of New York and the act of Congress, and explicitly puts its decision upon that ground. Now the whole of this part of the opinion would have been unnecessary and out of place if the state law was of itself a violation of the Constitution of the United States and therefore utterly null and void, whether it did or did not come in conflict with the law of Congress.

Moreover, the Court distinctly admits, on pages 22 U. S. 205-206, that a state may, in the execution of its police and health laws, make regulations of commerce, but which Congress may control. It is very clear that, so far as these regulations are merely internal and do not operate on foreign commerce or commerce among the states, they are altogether independent of the power of the general government and cannot be controlled by it. The power of control, therefore, which the Court speaks of presupposes that they are regulations of foreign commerce or commerce among the states. And if a state, with a view to its police or health, may make valid regulations of commerce which yet fall within the controlling power of the general government, it follows that the state is not absolutely prohibited from making regulations of foreign commerce within its own territorial limits, provided they do not come in conflict with the laws of Congress.

It has been said, indeed, that quarantine and health laws are passed by the states not by virtue of a power to regulate commerce, but by virtue of their police powers, and in order to guard

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the lives and health of their citizens. This, however, cannot be said of the pilot laws, which are yet admitted to be equally valid. But what are the police powers of a state? They are nothing more or less than the powers of government inherent in every sovereignty to the extent of its dominions. And whether a state passes a quarantine law, or a law to punish offenses, or to establish courts of justice, or requiring certain instruments to be recorded, or to regulate commerce within its own limits, in every case it exercises the same powers -- that is to say, the power of sovereignty, the power to govern men and things within the limits of its dominion. It is by virtue of this power that it legislates, and its authority to make regulations of commerce is as absolute as its power to pass health laws except insofar as it has been restricted by the Constitution of the United States. And when the validity of a state law making regulations of commerce is drawn into question in a judicial tribunal, the authority to pass it cannot be made to depend upon the motives that may be supposed to have influenced the legislature, nor can the court inquire whether it was intended to guard the citizens of the state from pestilence and disease or to make regulations of commerce for the interests and convenience of trade.

Upon this question the object and motive of the state are of no importance, and cannot influence the decision. It is a question of power. Are the states absolutely prohibited by the Constitution from making any regulations of foreign commerce? If they are, then such regulations are null and void, whatever may have been the motive of the state, or whatever the real object of the law, and it requires no law of Congress to control or annul them. Yet the case of Gibbons v. Ogden unquestionably affirms that such regulations may be made by a state, subject to the controlling power of Congress. And if this may be done, it necessarily follows that the grant of power to the federal government is not an absolute and entire prohibition to the states, but merely confers upon Congress the superior and controlling power. And to expound the particular passages herein before mentioned in the manner insisted upon by those who contend for the prohibition would be to make different parts of that opinion inconsistent with each other -- an error which I am quite sure no one will ever impute to the very eminent jurist by whom the opinion was delivered.

And that the meaning of the court in the case of Gibbons v. Ogden was such as I have insisted on is, I think, conclusively proved by the case of @ 26 U. S. 252. In that case, a dam authorized by a state law had been erected across a navigable creek so as to obstruct the commerce above it. And the validity of the state law was objected to on the ground that it was repugnant to the Constitution of the United States, being a regulation of commerce. But the Court said

"The repugnancy of the law of Delaware to the

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Constitution is placed entirely on its repugnancy to the power to regulate commerce with foreign nations, and among the several states; a power which has not been so exercised as to affect the question,"

and then proceeds to decide that the law of Delaware could not "be considered as repugnant to the power to regulate commerce in its dormant state, or as being in conflict with any law passed on the subject."

The passages I have quoted show that the validity of the state law was maintained because it was not in conflict with a law of Congress, although it was confessedly within the limits of the power granted. And it is worthy of remark that the counsel for the plaintiff in error in that case relied upon Gibbons v. Ogden as conclusive authority to show the unconstitutionality of the state law, no doubt placing upon the passages I have mentioned the construction given to them by those who insist upon the exclusiveness of the power. This case therefore was brought fully to the attention of the court. And the decision in the last case, and the grounds on which it was placed, in my judgment show most clearly what was intended in Gibbons v. Ogden, and that in that case, as well as in the case of Willson v. Blackbird Creek Marsh Company, the Court held that a state law was not invalid merely because it made regulations of commerce, but that its invalidity depended upon its repugnancy to a law of Congress passed in pursuance of the power granted. And it is worthy also of remark that the opinion in both of these cases was delivered by Chief Justice Marshall, and I consider his opinion in the latter one as an exposition of what he meant to decide in the former.

In the case of the City of New York v. Miln, 11 Pet. 130, the question as to the power of the states upon this subject was very fully discussed at the bar. But no opinion was expressed upon it by the Court, because the case did not necessarily involve it and there was great diversity of opinion on the bench. Consequently the point was left open, and has never been decided in any subsequent case in this Court.

For my own part, I have always regarded the cases of Gibbons v. Ogden and Willson v. Blackbird Creek Marsh Company as abundantly sufficient to sanction the construction of the Constitution which in my judgment is the true one. Their correctness has never been questioned, and I forbear therefore to remark on the other cases in which this subject has been mentioned and discussed.

It may be well, however, to remark that in analogous cases where by the Constitution of the United States power over a particular subject is conferred on Congress without any prohibition to the states, the same rule of construction has prevailed. Thus, in the case of Houston v. Moore, 5 Wheat. 1, it was held, that the grant of power to the federal government to provide for organizing, arming, and disciplining the militia did not preclude the states from

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legislating on the same subject, provided the law of the state was not repugnant to the law of Congress. And every state in the Union has continually legislated on the subject, and I am not aware that the validity of these laws has ever been disputed unless they came in conflict with the law of Congress.

The same doctrine was held in the case of Sturges v. Crowninshield, 4 Wheat. 196, under the clause in the Constitution which gives to Congress the power to establish uniform laws on the subject of bankruptcies throughout the United States.

And in the case of Chirac v. Chirac, 2 Wheat. 269, which arose under the grant of power to establish a uniform rule of naturalization, where the court speak of the power of Congress as exclusive, they are evidently merely sanctioning the argument of counsel stated in the preceding sentence, which placed the invalidity of the naturalization under the law of Maryland, not solely upon the grant of power in the Constitution, but insisted that the Maryland law was "virtually repealed by the Constitution of the United States, and the act of naturalization enacted by Congress." Undoubtedly it was so repealed, and the opposing counsel in the case did not dispute it. For the law of the United States covered every part of the Union, and there could not therefore by possibility be a state law which did not come in conflict with it. And indeed in this case it might well have been doubted whether the grant in the Constitution itself did not abrogate the power of the states, inasmuch as the Constitution also provided that the citizens of each state should be entitled to all the privileges and immunities of citizens in the several states, and it would seem to be hardly consistent with this provision to allow any one state, after the adoption of the Constitution, to exercise a power which, if it operated at all, must operate beyond the territory of the state and compel other states to acknowledge as citizens those whom it might not be willing to receive.

In referring to the opinions of those who sat here before us, it is but justice to them, in expounding their language, to keep in mind the character of the case they were deciding. And this is more especially necessary in cases depending upon the construction of the Constitution of the United States, where, from the great public interests which must always be involved in such questions, this Court have usually deemed it advisable to state very much at large the principles and reasoning upon which their judgment was founded and to refer to and comment on the leading points made by the counsel on either side in the argument. And I am not aware of any instance in which the Court has spoken of the grant of power to the general government as excluding all state power over the subject, unless it was deciding a case where the power had been exercised by Congress and a state law came in conflict with it. In cases of this kind, the power of Congress undoubtedly excludes

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and displaces that of the state, because wherever there is collision between them, the law of Congress is supreme. And it is in this sense only, in my judgment, that it has been spoken of as exclusive in the opinions of the Court to which I have referred. The case last mentioned is a striking example, for there the language of the Court, affirming in the broadest terms the exclusiveness of the power, evidently refers to the argument of counsel stated in the preceding sentence.

Upon the whole, therefore, the law of New Hampshire is, in my judgment, a valid one. For although the gin sold was an import from another state, and Congress has clearly the power to regulate such importations under the grant of power to regulate commerce among the several states, yet as Congress has made no regulation on the subject, the traffic in the article may be lawfully regulated by the state as soon as it is landed in its territory, and a tax imposed upon it, or a license required, or the sale altogether prohibited, according to the policy which the state may suppose to be its interest or duty to pursue.

The judgment of the state courts ought, therefore, in my opinion, to be affirmed in each of the three cases before us.

MR. JUSTICE McLEAN.

Thurlow v. Commonwealth of Massachusetts -- Error from the state court

The plaintiff was indicted and convicted under the Revised statutes of Massachusetts, chapter 47, and the act of 1837, chapter 242, for selling foreign spirits, in 1841 and 1842, without a license.

The third section of the revised act provides that no person shall presume to be a retailer or seller of wine, brandy, rum, or other spirituous liquors, in a less quantity than twenty-eight gallons, and that delivered and carried away all at one time, unless he is first licensed as a retailer of wine and spirits, "under the penalty of twenty dollars." The seventeenth section authorizes the county commissioners to grant licenses, and the second section of the act of 1837 provides that

"Nothing contained in that act or in the forty-seventh chapter of the Revised statutes shall be so construed as to require the county commissioners to grant any licenses when in their opinion the public good does not require them to be granted."

On the trial in the court of common pleas it was objected that a part of the spirits sold were foreign, but the court instructed the jury that such sale was in violation of the statute, which was not inconsistent with the Constitution or revenue laws of the United States. On this ruling of the court an exception was taken, and the cause was removed to the Supreme Court of the State of Massachusetts, which overruled the exception and entered a judgment on the verdict against the defendant.

Page 46 U. S. 587

The acts of Congress authorize the importation of spirits in casks of fifteen gallons, and wine in bottles.

The great question in this case is whether the license laws of Massachusetts are repugnant to the Constitution of the United States, or the revenue laws which have been enacted under it.

And first it is insisted that they are unconstitutional as they prohibit the importer from selling an article that he is authorized to import without the payment of an additional duty, or impost, which the state cannot impose.

The case of Brown v. State of Maryland, 12 Wheat. 419, is supposed to be conclusive upon this point. This may be admitted and yet it does not rule the case before us.

Brown was charged with having imported and sold a package of dry goods without a license. An act of Maryland required all importers, before the sale of their imported articles, to take out a license. And the Court held

"that a tax on the sale of an article, imported only for sale, is a tax on the article itself -- that the importation gave a right to the importer to sell the package in question free from any charge by the state, and consequently that the act of Maryland was unconstitutional and void as being repugnant to that article of the Constitution which declares that no state shall lay an impost or duties on imports or exports."

The act was also held to be repugnant to that clause in the Constitution which "empowers Congress to regulate commerce with foreign nations, and among the several states, and with the Indian tribes."

In Brown's Case, the reasoning of the Court and its decision turned upon the fact that he, being the importer of the package, had a right to sell it; that this right continued so long as the package was unbroken and remained the property of the importer.

The plaintiff, Thurlow, asserts no right as an importer of the article sold. He purchased it in the home market; consequently neither the general reasoning nor the ruling of the Court in Brown's Case can control this one.

The Tenth Amendment of the Constitution declares, that

"The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people."

Before the adoption of the Constitution, the states possessed, respectively, all the attributes of sovereignty. In their organic laws they had distributed their powers of government according to their own views, subject to such modifications as the people of each state might sanction. The agencies established by the Articles of Confederation were not entitled to the dignified appellation of government.

Among the delegated functions it is declared, that

"Congress shall have power to regulate commerce with foreign nations, and

Page 46 U. S. 588

among the several states, and with the Indian tribes."

This investiture of power is declared by this Court, in the case of Gibbons v. Ogden, 9 Wheat. 1, and also in Brown v. State of Maryland, "to be complete in itself, and to acknowledge no limitations other than are prescribed by the Constitution."

There may be a limitation on the exercise of sovereign powers, but that state is not sovereign which is subject to the will of another. This remark applies equally to the federal and state governments. The federal government is supreme within the scope of its delegated powers, and the state governments are equally supreme in the exercise of those powers not delegated by them nor inhibited to them. From this it is clear that while these supreme functions are exercised by the federal and state governments, within their respective limitations, they can never come in conflict. And when a conflict occurs, the inquiry must necessarily be which is the paramount law? And that must depend upon the supremacy of the power by which it was enacted. The federal government is supreme in the exercise of powers delegated to it, but beyond this its acts are unconstitutional and void. So the acts of the states are void when they do that which is inhibited to them, or exercise a power which they have exclusively delegated to the federal government.

The power to tax is common to the federal and state governments, and it may be exercised by each in taxing the same property, but this produces no conflict of jurisdiction. The conflicts which have arisen are mainly attributable to the want of an accurate definition and a clear comprehension of the respective powers of the two governments. In a system of government so complex as ours, it may be difficult, perhaps impracticable, to prescribe the exact limit, in particular cases, to federal and state powers.

The powers expressly prohibited to the states are few in number, and are specified in the Constitution. Those which are exclusively delegated to the federal government, and consequently, by implication, are prohibited to the states, are more numerous.

The states, resting upon their original basis of sovereignty, subject only to the exceptions stated, exercise their powers over everything connected with their social and internal condition. A state regulates its domestic commerce, contracts, the transmission of estates, real and personal, and acts upon all internal matters which relate to its moral and political welfare. Over these subjects the federal government has no power. They appertain to the state sovereignty as exclusively as powers exclusively delegated appertain to the general government.

The license acts of Massachusetts do not purport to be a regulation of commerce. They are essentially police laws. Enactments similar in principle are common to all the states. Since the adoption of its Constitution, they have existed in Massachusetts. A great

Page 46 U. S. 589

moral reform, which enlisted the judgments and excited the sympathies of the public, has given notoriety to this course of legislation and extended it lately beyond its former limit. And the question is now raised whether the laws under consideration trench upon the power of Congress to regulate foreign commerce.

These laws do not in terms prohibit the sale of foreign spirits, but they require a license to sell any quantity less than twenty-eight gallons. Under the decision of Brown v. Maryland, it is admitted that the license acts cannot operate upon the right of the importer to sell. But after the import shall have passed out of the hands of the importer, whether it remain in the original package or cask or be broken up, it becomes mingled with other property in the state and is subject to its laws. This is the predicament of the spirits in question.

A license to sell an article, foreign or domestic, as a merchant or innkeeper or victualler is a matter of police and of revenue, within the power of a state. It is strictly an internal regulation, and cannot come in conflict, saving the rights of the importer to sell, of any power possessed by Congress. It is said to reduce the amount of importation by lessening the profits of the thing imported. The license is a charge upon the business or profession, and not a duty upon the things sold. The same price is charged to every retailer of merchandise or spirits at the same place, without regard to the amount sold. This charge is in advance of any sales. It would be difficult to show that such a regulation reduced the amount of imported goods. But if this were the effect of the license, would that make the acts unconstitutional?

The acknowledged police power of a state extends often to the destruction of property. A nuisance may be abated. Everything prejudicial to the health or morals of a city may be removed. Merchandise from a port where a contagious disease prevails, being liable to communicate the disease, may be excluded, and in extreme cases it may be thrown into the sea. This comes in direct conflict with the regulation of commerce, and yet no one doubts the local power. It is a power essential to self-preservation, and exists necessarily in every organized community. It is indeed the law of nature, and is possessed by man in his individual capacity. He may resist that which does him harm, whether he be assailed by an assassin or approached by poison. And it is the settled construction of every regulation of commerce that under the sanction of its general laws, no person can introduce into a community malignant diseases or anything which contaminates its morals or endangers its safety. And this is an acknowledged principle applicable to all general regulations. Individuals in the enjoyment of their own rights must be careful not to injure the rights of others.

From the explosive nature of gunpowder, a city may exclude it. Now this is an article of commerce, and is not known to carry infectious

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disease; yet, to guard against a contingent injury, a city may prohibit its introduction. These exceptions are always implied in commercial regulations, where the general government is admitted to have the exclusive power. They are not regulations of commerce, but acts of self-preservation. And although they affect commerce to some extent, yet such effect is the result of the exercise of an undoubted power in the state.

The objection is strongly and confidently urged that a license may be refused under these laws, which would in effect prevent importation, as importation is only made to sell.

It is admitted that a state law which shall prohibit importations of foreign spirits, being repugnant to the commercial power in the federal government and contrary to the act of Congress on that subject, would be void. The object of such a law would upon its face be a regulation of commerce, which is not within the powers of a state. But a state has a right to regulate the sale of this as of every other imported article out of the hands of the importer.

The license system as adopted in all the states restrains persons from selling by retail who have not taken a license, and a license to retail spirits is granted by the court, or some other body, at its discretion, and on certain conditions. This is the character of the law under consideration. The applicant to obtain a license must be recommended by a majority of the selectmen of the town as a person of good moral character. Should this recommendation be refused improperly or unjustly, an appeal is given to the commissioners of the county. But the commissioners are not required to grant any licenses "when, in their opinion, the public good does not require them to be granted."

There is no evidence in the record of a refusal to grant a license in this case. The plaintiff is charged with selling without a license, but it nowhere appears that he ever applied for one. This would seem to be conclusive. For if a state have a right to regulate the retail of foreign spirits, no one can retail them where a license is required without it. Now that a state may do this no one doubts. And it is equally clear if the plaintiff rests upon a prohibition to sell, it must be shown. This does not appear on the face of the law, and if, in the exercise of their discretion, the commissioners have refused all licenses, that is a matter of fact which must be established. On this ground alone, admitting the force of the arguments for the plaintiff, his case must fail.

But, not to rest the decision of so important a question on a defect of proof, we will consider the case as if the fact of refusal to grant the license were in the record.

The necessity of a license presupposes a prohibition of the right to sell as to those who have no license. For if a state may require a license to sell, it may, in the exercise of a proper discretion, limit the number of such licenses as the public good may seem to require.

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This is believed to have been done under every system of licenses to retail spirits which has been adopted in the different states. And this limitation may possibly lessen the sale of the article. This may be the result of any regulation on the subject. But it constitutes no objection to the law. An innkeeper is forbidden to allow drunkenness in his house, and if this prohibition be observed, a less quantity of rum is sold. Is this unconstitutional because it may reduce the importation of the article? Such an argument would be so absurd as to be at once rejected by every sound mind. No one could fail to see that the injunction was laid for the maintenance of good order and good morals. To reject this view would make the excess of the drunkard a constitutional duty, to encourage the importation of ardent spirits.

Such an argument would be advanced by no one, and no one would question either the constitutionality or expediency of the law which prohibits an innkeeper from encouraging drunkenness. And yet in this simple proposition is the argument answered against the constitutionality of the laws in question.

A discretion on this subject must be exercised somewhere, and it can be exercised nowhere but under the state authority. The state may regulate the sale of foreign spirits, and such regulation is valid though it reduce the quantity of spirits consumed. This is admitted. And how can this discretion be controlled? The powers of the general government do not extend to it. It is in every aspect a local regulation, and relates exclusively to the internal police of the state.

It is said that the object of these laws is to prohibit the importation of foreign spirits. This is an inference which their language does not authorize. A license is only required to sell in less quantity than twenty-eight gallons. A greater quantity than this may be sold without restriction. But it is said, if the legislature may require a license for twenty-eight gallons, it may extend the limitation to three hundred gallons.

In answer to this, it is enough to say that the legislature has not done what is supposed by the plaintiff's counsel it might do. But if the legislature cannot extend the license to twenty-eight gallons, what shall be the constitutional limit? By what rule shall it be ascertained? Shall a gallon, a quart, or a pint be the limit? This is altogether arbitrary, and must depend upon the discretion of the lawmaking power -- the same discretion that imposes a tax, defines offenses and prescribes their punishment, and which controls the internal policy of the state. Will it be contended that the legislature cannot exercise the power, as it may be exercised beyond the proper limit? This logic is not good when applied to the practical operations of the government. The argument is power may be abused, therefore it cannot be exercised. What power dependent on human agency may not be abused?

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In all matters of government, and especially of police, a wide discretion is necessary. It is not susceptible of an exact limitation, but must be exercised under the changing exigencies of society. In the progress of population, of wealth, and of civilization, new and vicious indulgencies spring up, which require restraints that can only be imposed by the legislative power. When this power shall be exerted, how far it shall be carried, and where it shall cease, must mainly depend upon the evil to be remedied. Under the pretense of a police regulation, a state cannot counteract the commercial power of Congress. And yet, as has been shown, to guard the health, morals, and safety of the community, the laws of a state may prohibit an importer from landing his goods, and may sometimes authorize their destruction. But this exception to the operation of the general commercial law is limited to the existing exigency. Still, it is clear that a law of a state is not rendered unconstitutional by an incidental reduction of importation. And especially is this not the case when the state regulation has a salutary tendency on society, and is founded on the highest moral considerations.

The police power of a state and the foreign commercial power of Congress must stand together. Neither of them can be so exercised as materially to affect the other. The sources and objects of these powers are exclusive, distinct, and independent, and are essential to both governments. The one operates upon our foreign intercourse, the other upon the internal concerns of a state. The former ceases when the foreign product becomes commingled with the other property in the state. At this point the local law attaches, and regulates it as it does other property. The state cannot, with a view to encourage its local manufactures, prohibit the use of foreign articles or impose such a regulation as shall in effect be a prohibition. But it may tax such property as it taxes other and similar articles in the state, either specifically or in the form of a license to sell. A license may be required to sell foreign articles, when those of a domestic manufacture are sold without one. And if the foreign article be injurious to the health or morals of the community, a state may, in the exercise of that great and conservative police power which lies at the foundation of its prosperity, prohibit the sale of it. No one doubts this in relation to infected goods or licentious publications. Such a regulation must be made in good faith, and have for its sole object the preservation of the health or morals of society. If a foreign spirit should be imported containing deleterious ingredients, fatal to the health of those who use it, its sale may be prohibited.

When in the appropriate exercise of these federal and state powers, contingently and incidentally their lines of action run into each other; if the state power be necessary to the preservation of the morals, the health, or safety of the community, it must be maintained.

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But this exigency is not to be founded on any notions of commercial policy, or sustained by a course of reasoning about that which may be supposed to affect, in some degree, the public welfare. The import must be of such a character as to produce, by its admission or use, a great physical or moral evil. Any diminution of the revenue arising from this exercise of local power would be more than repaid by the beneficial results. By preserving as far as possible the health, the safety, and the moral energies of society, its prosperity is advanced.

In McCullough v. State of Maryland, 4 Wheat. 428, this Court said

"It is admitted that the power of taxing the people and their property is essential to the very existence of government, and may be legitimately exercised on the objects to which it is applicable, to the utmost extent to which the government may choose to carry it. The only security against the abuse of this power is found in the structure of the government itself. In imposing a tax, the legislature acts upon its constituents. This is in general a sufficient security against erroneous and oppressive taxation."

"The people of a state therefore give to their government a right of taxing themselves and their property, and as the exigencies of government cannot be limited, they prescribe no limits to the exercise of this right, resting confidently on the interest of the legislator and on the influence of the Constitutions over their representatives to guard them against abuse."

Believing the laws of Massachusetts to regulate licenses for the sale of spirituous liquors to be constitutional, I affirm the judgment in this case.

Andrew Peirce, Jr., and Thomas W. Peirce v. State of New Hampshire

This is a writ of error to the Supreme Court of New Hampshire on a judgment given by that court sustaining the validity of the act of that state, "regulating the sale of wines and spirituous liquors," "approved 4 July, 1838," which is alleged to be in violation of the Constitution of the United States and the revenue acts of Congress made in pursuance thereof.

The first section provides

"That if any person shall, without license from the selectmen of the town &c., sell any wine, rum, gin, brandy, or other spirits, in any quantity &c., such person, so offending, for each and every such offense &c., shall pay a sum not exceeding fifty dollars,"

&c. The indictment charged the defendants in the state court with having sold one barrel of gin without a license.

On the trial it was proved that the barrel of gin was purchased by the defendants in Boston, brought coastwise to the landing at Piscataqua Bridge, and thence to the defendants' store in Dover, and afterwards sold in the same barrel.

The views expressed by me in the case of Thurlow v.

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Massachusetts, at the present term, as regards the power of a state to require a license for the sale of spirituous liquors, apply equally to the present case. A state may require a license to sell ardent spirits of domestic manufacture, as well as foreign. And the only difference between this case and the one above cited is that the defendants imported this barrel of gin from the State of Massachusetts to that of New Hampshire, where they sold it, and they claim the right of importers to sell without a license.

In the case of Brown v. State of Maryland, 12 Wheat. 449, after sustaining the right of the importer to sell a package of foreign goods without a license, which an act of Maryland required, the court said -- "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."

This remark of the Court was incidental to the question before it, and the point was not necessarily involved in the decision. Whilst the remark cannot fail to be considered with the greatest respect, coming as it did from a most learned and eminent Chief Justice, yet it cannot be received as authority. It must have been made with less consideration than the other points ruled in that important case.

The power to regulate commerce among the several states is given to Congress in the same words as the power over foreign commerce. But in the same article it is declared that

"no preference shall be given by any regulation of commerce or revenue to the ports of one state over those of another; nor shall vessels bound to or from one state be obliged to enter, clear, or pay duties in another."

And it is supposed that the declaration

"that no state, without the consent to Congress, shall lay any impost or duties on imports or exports, except what may be absolutely necessary for executing its inspection laws"

refers to foreign commerce.

A revenue to the general government could never have been contemplated from any regulation of commerce among the several states. Countervailing duties, under the Confederation, were imposed by the different states to such an extent as to endanger the confederacy. But this cannot be done under the Constitution by Congress, in whom the power to regulate commerce among the states is vested.

The word "import," in a commercial sense, means the goods or other articles brought into this country from abroad -- from another country. In this sense, an importer is a person engaged in foreign commerce. And it appears that in the acts of Congress which regulate foreign commerce, he is spoken of in that light. In Brown v. State of Maryland, 12 Wheat. 443, the Court said the act of Maryland "denies to the importer the right of using the privilege which he has purchased from the United States until he has purchased it from the state." And it was upon the ground that the tax was an additional charge or impost upon the thing imported,

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which a state could not impose, that the above act was held to be unconstitutional.

But neither the facts nor the reasons of that case apply to a person who transports an article from one state to another. In some cases, the transportation is only made a few feet or rods, and generally it is attended with little risk, and no duty is paid to the federal or state government. And why should property, when conveyed over a state line, be exempt from taxation which is common to all other property in the state?

There is no act of Congress to which the license law, as applied to this case, can be held repugnant. And the general "power in Congress to regulate commerce among the several states," under the restrictions in the Constitution, cannot affect the validity of the law. The Constitution prohibits impost duties on a commercial interchange of commodities among the states. The tax in the form of a license, as here presented, counteracts no policy of the federal government, is repugnant to no power it can exercise, and is imposed by the exercise of an undoubted power in the state. The license system is a police regulation, and, as modified in the State of New Hampshire, was designed to restrain and prevent immoral indulgences and to advance the moral and physical welfare of society.

The owner of the property, who purchased it in Massachusetts and transported it to New Hampshire, is not an importer in the sense in which that term is used in the case of Brown v. State of Maryland. And there is nothing in the general reasoning of that case or in the facts which can bring into doubt the constitutionality of the New Hampshire law.

If the mere conveyance of property from one state to another shall exempt it from taxation and from general state regulation, it will not be difficult to avoid the police laws of any state, especially by those who live at or near the boundary. If this tax had been laid on the property as an import into the state, the law would have been repugnant to the Constitution. It would have been a regulation of commerce among the states, which has been exclusively given to Congress. One of the objects in adopting the Constitution was to regulate this commerce, and to prevent the states from imposing a tax on the commerce of each other. If this power has not been delegated to Congress, it is still retained by the states, and may be exercised at their discretion, as before the adoption of the Constitution. For if it be a reserved power, Congress can neither abridge nor abolish it.

But this barrel of gin, like all other property within the State of New Hampshire, was liable to taxation by the state. It comes under the general regulation, and cannot be sold without a license. The right of an importer of foreign spirits to sell in the cask without a license does not attach to the plaintiffs in error, on account

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of their having transported this property from Massachusetts to New Hampshire. I affirm the judgment of the state court.

Joel Fletcher v. State of Rhode Island

This is a writ of error to the Supreme Court of Rhode Island, under the 25th section of the Judiciary Act of 1789. Fletcher was indicted for selling strong liquor, to-wit, rum, gin, and brandy, in less quantity than ten gallons, in violation of the law of Rhode Island. From the evidence, it appeared that the brandy which he sold was purchased by him at Boston, in the State of Massachusetts, that it was imported into the United States from France for sale, and that the duties had been regularly paid at the port of Boston. The sale of the liquor was admitted by the defendant, as charged in the indictment.

In the defense it was insisted that the license act was void, it being repugnant to that clause of the 8th 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 debts, and provide for the common defense and general welfare of the United States, but all duties, imposts, and excises shall be uniform throughout the United States,"

and is also repugnant to that clause of the 8th section which provides

"That Congress shall have power to regulate commerce with foreign nations, and among the several states, and with the Indian tribes,"

and also repugnant to that clause which declares, that

"No state shall, without the consent of Congress, lay any imposts or duties on imports 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,"

&c.

The supreme court of the state maintained the validity of the state statute, and to reverse that judgment this writ of error is prosecuted.

The opinions given by me in the cases of Thurlow v. State of Massachusetts, and Peirce v. State of New Hampshire, decide, so far as I am concerned, this case. The first case related to the sale of spirits of foreign importation, not in the hands of the importer; the second to domestic spirits transported from one state to another. And the indictment now under consideration relates to the sale of foreign spirits purchased in Massachusetts and transported to Rhode Island. There is, however, one point made in this case which was not embraced by the facts contained in either of the others. It was

"agreed that the Town Council of Cumberland, in Rhode Island, refused to grant any license for retailing strong liquors for a year from April, 1845, having been instructed to that effect by a town meeting."

The effect of this proceeding was to prohibit the sale of spirituous liquors in the Town of Cumberland in less quantities than ten gallons.

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There is no constitutional objection to the exercise of this discretion under the authority of the state law. In the first place, no system of licenses to retail spirits has authorized the grant except upon certain conditions. No one, it is presumed, can claim a license to retail spirits as a matter of right. Under the law of the state, a discretion is to be exercised not only as regards the individuals who apply, but also as to the number that shall be licensed in each town. And if it shall be determined that a certain town is not entitled to a license, it is not perceived how such a decision can be controlled. In the case of Fletcher, it seems that the town council, who have the power to make the grant, were influenced to refuse it by the popular vote of the town. A more satisfactory mode of instructing public officers, it would seem, could not be adopted.

This produces no restriction on the sale of spirits in any quantity exceeding ten gallons. And there is nothing in the record which shows that licenses are not granted in the adjacent towns within the state. But if this did appear, it would not avoid the force of the act. I think this regulation is clearly within the power of the State of Rhode Island, and, consequently, that the act is not repugnant to the Constitution of the United States or to any act of Congress passed in pursuance of it. I therefore affirm the judgment of the Supreme Court.

MR. JUSTICE CATRON.

Peirce and another v. New Hampshire

Andrew Peirce and two others were indicted for selling one barrel of gin, contrary to a statute of New Hampshire, passed in 1838, which provides that if any person shall, without license from the selectmen of the town 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 offense, on conviction upon an indictment, shall forfeit and pay a sum not exceeding fifty dollars, nor less than twenty-five dollars, for the use of the county.

The barrel of gin had been purchased by the defendants at Boston, in the Commonwealth of Massachusetts, and was brought coastwise by water near to Dover, in New Hampshire, where it was sold in the same barrel and condition that it had been purchased in Boston. Part of the regular business of the defendants was to sell ardent spirits in large quantities.

The defendants' counsel contended on the trial that the statute of 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

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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."

In answer to these objections, the court 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.

The jury found the defendants guilty, and the court of common pleas fined them thirty dollars, from which they prosecuted their writ of error to the Superior Court of Judicature of New Hampshire, where the judgment was affirmed. The present writ of error is prosecuted, under the twenty-fifth section of the Judiciary Act of 1789, to reverse the judgment of the state court of New Hampshire on the grounds above stated. And the question and the case presented for our consideration are whether the state laws, and the judgment founded on them are repugnant to the Constitution of the United States. The court below having decided in favor of their validity, this is the only question that comes within our jurisdiction, although divers others were presented to and adjudged by the state court.

The importance of this case, as regards its bearing on the commerce

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among the states and on the relations and rights of their citizens and inhabitants is not to be disguised. To my mind it presents most delicate and difficult considerations.

The first objection, that the statute of New Hampshire violated certain treaties with Holland, France &c., providing for the admission of ardent spirits, has no application to the case, as the spirits sold were not foreign, but American gin.

The second objection relies on the first article and tenth section of the Constitution, which provides, that "no state shall lay any imposts or duties on imports or exports, nor any duty on tonnage," unless with the assent of Congress &c. These are negative restrictions, where the Constitution operates by its own force; but as no duty or tax was imposed on the gin introduced into New Hampshire from Massachusetts, either directly or indirectly, these prohibitions on the state power do not apply.

The third objection proceeds on the clause that "the Congress shall have power to regulate commerce with foreign nations, and among the several states, and with the Indian tribes," to which it is insisted the state statute is opposed. The power given to Congress is unrestricted, and broad as the subjects to which it relates; it extends to all lawful commerce with foreign nations, and in the same terms to all lawful commerce among the states; and "among" means between two only, as well as among more than two; if it was otherwise, then an intermediate state might interdict and obstruct the transportation of imports over it to a third state, and thereby impair the general power. The article in question was introduced from one state directly into another, and the first question is was it a subject of lawful commerce among the states, that Congress can regulate? That ardent spirits have been for ages, and now are, subjects of sale and of lawful commerce, and that of a large class, throughout a great portion of the civilized world, is not open to controversy; so our commercial treaties with foreign powers declare them to be, and so the dealing in them among the states of this Union recognizes them to be. But this condition of the subject matter was met by the state decision on the ground, and on this only,

"that the state might pass health and police laws which would, to a certain extent, affect foreign commerce and commerce between the states; and that the statute [of New Hampshire] was a regulation of that character, and constitutional."

This was the charge to the jury, and on it the verdict and judgment are founded, and which the state court of last resort affirmed. The law and the decision apply equally to foreign and to domestic spirits, as they must do on the principles assumed in support of the law. The assumption is that the police power was not touched by the Constitution, but left to the states as the Constitution found it. This is admitted, and whenever a thing, from character or condition,

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LICENSE CASES, 46 U. S. 504 (1847)

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U.S. Supreme Court

License Cases, 46 U.S. 5 How. 504 504 (1847)