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which imposed a penalty on any person selling any wine, rum, gin, brandy, or other spirits, in any quantity, "without license from the selectmen of the town or place where such person resides." Laws N. H. 1838, c. 369; 5 How. 555. The plaintiffs in error, having been indicted under that statute for selling to one Aaron Sias, in the town of Dover, in the state of New Hampshire, one barrel of gin without license from the selectmen of the town, at the trial admitted that they so sold to him a barrel of American gin; and 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." The defendants contended that the statute was unconstitutional, because it was "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 was repugnant to the clauses of the constitution of the United States, restricting the power of the states to lay duties on imports or exports, and granting the power to congress to regulate commerce with foreign nations and among the several states. Chief Justice PARKER *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; hut 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 passing upon the article while it is within the 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. After a verdict of guilty, exceptions to this instruction were overruled by the highest court of the state. 5 How. 554-557, 13 N. H. 536.

after recognizing that "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 articles 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;" and yet upholding the validity of the statutes of Massachusetts and Rhode Island, as not interfering with the trade in ardent spirits while they remained a part of foreign commerce, and were in the hands of the importer for sale, in the cask or vessel in which the laws of congress authorized them to be imported, (page 577,)-proceeded to state the case from New Hampshire as follows: "The present case, however, differs from Brown v. Maryland in this: that the former was one arising out of commerce with foreign nations, which congress has 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, act

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In that case, as in the case at bar, the statute of the state prohibited sales of intoxicating liquors by any person without a license from municipal authorities, and authorized licenses to be granted only to persons residing within the state; and the liquors were sold within the state by the importer, and in the same barrel, keg, or case, unbroken and in the same condition, in which he had brought them from another state. Yet the judgment of the highest court of New Hampshire was unanimously affirmed by this court. Chief Justice TANEY, Mr. Justice CATRON, and Mr. Justice NELSON were of opinion that the statute of New Hampshire was a regulation of interstate commerce, but yet valid, so long as it was not in conflict with any act of congress. Chief Justice TANEY,

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admitted jurisdiction of the general government, and subject to its control and regulation. Page 578. And he concluded his opinion thus: "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 have 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. Page 586.

Mr. Justice CATRON expressed similarviews. While he was of opinion that the* ultimate right of determining what commodities might be lawful subjects of interstate commerce belonged to congress in the exercise of its power to regulate commerce, and not to the states in the exercise of the police power, he was equally clear that the statute of New Hampshire

was a valid regulation, in the absence of any legislation upon the subject by congress. After pointing out the difficulties standing in the way of any attempt by congress to make the special and various regulations required at different places at the maritime or inland borders of the states, he said: "I admit that this condition of things does not settle the question of contested power; but it satisfactorily shows that congress cannot do what the states have done, are doing, and must continue to do, from a controlling necessity, even should the exclusive power in congress be maintained by our decision." Page 606. "Congress has stood by for nearly sixty years, and seen the states regulate the commerce of the whole country, more or less, at the ports of entry and at all their borders, without objection; and for this court now to decide that the power did not exist in the states, and that all they had done in this respect was void from the beginning, would overthrow and annul entire codes of state legislation on the particular subject. We would by our decision expunge more state laws and city corporate regulations than congress is likely to make in a century on the same subject; and on no better assumption than that congress and the state legislatures had been altogether mistaken as to their respective powers for 50 years and more. If long usage, general acquiescence, and the absence of complaint can settle the interpretation of the clause in question, then it should be deemed as settled in conformity to the usage by the courts." Page 607. And finally, in summing up his conclusions, he said: "That the law of New Hampshire was a regulation of commerce among the states in regard to the article for selling of which the defendants were indicted and convicted; but that the state law was constitutionally passed, because of the power of the state thus to regulate; there being no regulation of congress, special or general, in existence, to which the state law was repugnant. Pages 608, 609. Mr. Justice NELSON expressed his concurrence in the opinions delivered by the chief justice and Mr. Justice CATRON. Page 618. Justices MCLEAN, DANIEL, WOODBURY, and Grier, on the other hand, were of opinion that the license laws of New Hampshire, as well as those of Massachusetts and Rhode Island, were merely police regulations, and not regulations of commerce, although they might incidentally affect com.

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Mr. Justice MCLEAN, in the course of his opinion in Thurlow v. Massachusetts, said: "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." Page 588. [St. Mass. 1786, c. 68; 1792, c. 25: 7 Dane, Abr. 43, 44.] "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 malig-nant 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 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 selfpreservation. And, though they affect commerce to some extent, yet such effect is the result of the exercise of an undoubted power in the state. Pages 589, 590. “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? Thepowers 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." Page 591. "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. Page 592.

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In his opinion in Peirce v. New Hampshire, he declared that the same views were equally applicable to that case, and added: "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 indulgence, and to advance the moral and physical welfare of society. "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." "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 ardent spirits to sell in the cask, without a license, does not attach to the plaintiffs in error, on account of their having transported this property from Massachusetts to New Hampshire." Pages 595, 596. Mr. Justice DANIEL said: "The license laws of Massachusetts, Rhode Island, and New Hampshire, now under review, impose no exaction on foreign commerce. They are laws simply determining the mode in which a particular commodity may be circulated within the respective jurisdictions of those states, vesting in their domestic tri

bunals a discretion in selecting the agents for such circulation, without discriminating between the sources whence commodities may have been derived. They do not restrict importation to any extent; they do not interfere with it, either in appearance or reality; they do not prohibit sales, either by wholesale or retail; they assert only the power of regulating the latter, but this entirely within the sphere of their peculiar authority. These laws are therefore in violation neither of the constitution of the United States, nor of any law nor treaty made in pursuance or under authority of the constitution." Page 617. Mr. Justice WOODBURY repeated and enforced the same views, saying, among other things: "It is manifest, also, whether as an abstract proposition or practical measure, that a prohibition to import is one thing, while a prohibition to sell without license is another and entirely different. The first would operate on foreign commerce, on the voyage. The latter affects only the internal business of the state after the foreign importation is completed and on shore." Page 619. "The subject of buying and selling within a state is one as exclusively belonging to the power of the state over its internal trade as that to regulate foreign commerce is with the general government, under the broadest construction of that power." "The idea, too, that a prohibition to sell would be tantamount to a prohibition to import does not seem to me either logical or founded in fact. For, even under a prohibition to sell, a person could import, as he often does, for his own consumption and that of his family and plantations; and also if a merchant, extensively engaged in commerce, often does import articles with no view of selling them here, but of storing them for a higher and more suitable market in another state or abroad." Page 620. "But this license is a regulation neither of domestic commerce between the states, nor of foreign commerce. It does not operate on either, or the imports of either, till they have entered the state, and become component parts of its property. Then it has by the constitution the exclusive power to regulate its own internal commerce and business in such articles, and bind all residents, citizens or not, by its regulations, if they ask its protection and privileges; and congress, instead of being opposed and thwarted by regulations as to this, can no more interfere in it than the states can interfere in regulation of foreign commerce." Page 625. "Whether such laws of the states as tc*licenses are to be classed as police measures, or as regulations of their internal commerce, or as taxation merely, imposed on local property and local business, and are to be justified by each or by all of them together, is of little consequence, if they are laws which from their nature and object must belong to all sovereign states. Call them by whatever name, if they are necessary to the well-being and independence of all communities, they remain among the reserved rights of the states, no express grant of them to the general government having been either proper, or apparently embraced in the constitution. So, whether they con

flict or not, indirectly and slightly, with some regulations of foreign commerce, after the subject-matter of that commerce touches the soil or waters within the limits of a state, is not perhaps very material, if they do not really relate to that commerce, or any other topic within the jurisdiction of the general government." Page 627.

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Mr. Justice GRIER did not consider the question of the exclusiveness of the power of congress to regulate foreign and interstate commerce as involved in the decision, but maintained the validity of the statutes in question under" the police power, which is exclusively in the states." Pages 631, 632. The other members of the court at that time were Mr. Justice WAYNE and Mr. Justice MCKINLEY, who do not appear by the report to have taken part in the decision of those cases, although the former appears at page 545 to have been present at the argument, and by the clerk's minutes to have been upon the bench when the judgments were delivered. It is certain that neither of them dissented from the decision of the court. The conse quences of an opposite conclusion in the case from New Hampshire regarding liquors brought from one state into another were forcibly stated by several of the judges Mr. Justice MCLEAN said: “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. Page 595. Mr. Justice CATRON said: "To hold that the state license law was void, as respects spirits coming in from other states as articles of commerce, would open the door to an almost entire evasion, as the spirits might be introduced in the smallest divisible quantities that the retail trade would require; the consequence of which would be that the dealers in New Hampshire would sell only spirits produced in other states, and that the products of New Hampshire would find an unrestrained market in the neighboring states having similar license laws to those of New Hampshire." Page 608. Mr. Justice WOODBURY said: "If the proposition was maintainable, that, without any legislation by congress as to the trade between the states, (except that in coasting, as before explained, to prevent smuggling,) anything imported from another state, foreign or domestic, could be sold of right in the package in which it was imported, not subject to any license or internal regulation of a state, then it is obvious that the whole license system may be evaded and nullified, either from abroad, or from a neighboring state. And the more especially can it be done from the latter, as imports may be made in bottles of any size, down to half a pint, of spirits or wines; and, if its sale cannot be interfered with and regulated, the retail business can be carried on in any small quantity, and by the most irresponsible and unsuitable persons, with perfect impunity." Pages 625, 626.

Mr. Justice GRIER, in an opinion marked by his characteristic vigor and directness

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of thought and expression, (after saying that he mainly concurred with Mr. Justice MCLEAN,) summed up the whole matter as follows: "The true question presented by these cases, and one which I am not disposed to evade, is whether the states have a right to prohibit the sale and consumption of an article of commerce which they believe to be pernicious in its effects, and the cause of disease, pauperism, and crime. I do not consider the question of the exclusiveness of the power of congress to regulate commerce as necessarily connected with the decision of this point. It has been frequently decided by this court that the powers which relate to merely municipal regulations, or what may more properly be called "internal police," are not surrendered by the states, or restrained by the constitution of the United States; and that, consequently, in relation to these, the authority of a state is complete, unqualified, and exclusive.' Without attempting to define what are the peculiar subjects or limits of this power, it may safely be affirmed that every law for the restraint and punishment of crime, for the preservation of the public peace, health, and morals, must come within this category. As subjects of legislation, they are from their very nature of primary importance; they lie at the foundation of social existence; they are for the protection of life and liberty, and necessarily compel all laws on subjects of secondary importance, which relate only to property, convenience, or luxury, to recede, when they come in conflict or collision; salus populi suprema lex. If the right to control these subjects be 'complete, unqualified, and exclusive' in the state legislatures, no regulations of secondary importance can supersede or restrain their operations, on any ground of prerogative or supremacy. The exigencies of the social compact require that such laws be executed before and above all others. It is for this reason that quarantine laws, which protect the public health, compel mere commercial regulations to submit to their control. They restrain the liberty of the passengers, they operate on the ship which is the instrument of commerce, and its officers and crew, the agents of navigation. seize the infected cargo, and cast it overboard. The soldier and the sailor, though in the service of the government, are arrested, imprisoned, and punished for their offenses against society. Paupers and convicts are refused admission into the country. All these things are done, not from any power which the states assume to regulate commerce or to interfere with the regulations of congress, but because police laws for the preservation of health, prevention of crime, and protection of the public welfare must of necessity have full and free operation, according to the exigency which requires their interference. It is not necessary, for the sake of justifying the state legislation now under consideration, to array the appalling statistics of misery, pauperism, and crime which have their origin in the use or abuse of ardent spirits. The police power, which is exclusively in the states, is alone competent to

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the correction of these great evils, and all measures of restraint or prohibition necessary to effect the purpose are within the scope of that authority. There is no conflict of power, or of legislation, as between the states and the United States; each is acting within its sphere, and for the public good; and, if a loss of revenue should accrue to the United States from a diminished consumption of ardent spirits, she will be the gainer a thousand-fold in the health, wealth, and happiness of the people." Pages 631, 632.

This abstract of the License Cases shows (what is made yet clearer by an attentive reading of the opinions as a whole) that the difference of opinion among the judges was upon the question whether the state statutes, which all agreed had some influence upon commerce, and all agreed were valid exercises of the police power, could properly be called regulations of commerce. While many of the judges said or assumed that a state could not restrict the sale by the importer and in the original packages of intoxicating liquors imported from a foreign country, which congress had authorized the importation of, and had caused duties to be levied upon, all of them undoubtingly held that where congress had not legislated a state might, for the protection of the health, the morals, and the safety of its inhabitants, restrict or prohibit, at its discretion and according to its own views of policy, the sale by the importer of intoxicating liquors brought into it from another state, and remaining in the barrels or packages in which they were brought in. The ability and thoroughness with which those cases were argued at the bar and on the bench, the care and thought bestowed upon their consideration, as manifested in the opinions delivered by the several judges, and the confidence with which each judge ex-t pressed his concurrence in the result, make the decision of the highest possible authority. It has been accepted and acted on as such by the legislatures, the courts, and the people, of the nation and of the states, for 40 years. It has not been touched by any act of congress; it has guided the legislation of many of the states; and it has been treated as beyond question by this court in a long series of cases. Veazie v. Moor, (1852,) 14 How. 568, 575; Sinnot v. Davenport, (1859,) 22 How. 227, 243; Gilman v. Philadelphia, (1865,) 3 Wall. 713, 730; Pervear v. Com., (1866,) 5 Wall. 475, 479; Woodruff v. Parham, (1868,) 8 Wall. 123, 139; U. S. v. Dewitt, (1869,) 9 Wall. 41, 45; Henderson v. Mayor, (1875,) 92 U. S. 259, 274; Beer Co. v. Massachusetts, (1877,) 97 Ú. S. 25, 33; Patterson v. Kentucky, (1878,) Id. 501, 503; Mobile Co. v. Kimball, (1880,) 102 U. S. 691, 701; Brown v. Houston, (1885,) 114 U. S. 622, 631, 5 Sup. Ct. Rep. 1091; Walling v. Michigan, (1886,) 116 U. S. 446, 461, 6 Sup. Ct. Rep. 454; Mugler v. Kansas, (1887,) 123 U. S. 623, 657, 658, 8 Sup. Ct. Rep. 273.

In the Passenger Cases, 7 How. 283, decided in 1849, two years after the License Cases, statutes of New York and Massachusetts, imposing taxes upon alien passengers arriving from abroad, were adjudged to be repugnant to the constitution

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and laws of the United States, and therefore void, by the opinions of Justices McLEAN, WAYNE, CATRON, MCKINLEY, and GRIER, against the dissent of Chief Justice TANEY and Justices DANIEL, NELSON, and WOODBURY, each of the judges delivering a separate opinion. The decision in the License Cases was relied on by each of the dissenting judges, (pages 470, 483, 497, 518, 524, 559;) and no doubt of the soundness of that decision was suggested in the opinions of the majority of the court, or in any of the subsequent cases in which the judgment of that majority was afterwards approved and followed, (Henderson v. Mayor, and Commissioners v. North German Lloyd, 92 U.S. 259; Chy Lung v. Freeman, Id. 275; People v. Compagnie, etc., 107 U.S. 59, 2 Sup. Ct. Rep. 87; Head Money Cases, 112 U. S. 580, 5 Sup. Ct. Rep. 247.)

When Mr. Justice GRIER, in the Passenger Cases, 7 How. 462, said, “And to what weight is that argument entitled which assumes that, because it is the policy of congress to leave this intercourse free, therefore it has not been regulated, and each state may put as many restrictions upon it as she pleases?" the context shows that he had in mind cases in which the policy to leave commerce free had been manifested by statute or treaty, and he had already (page 457) made it manifest that he did not intend to retract or to qualify his opinion in the License Cases.

An intention on the part of congress that commerce shall be free from the operation of laws passed by a state in the exercise of its police power cannot be inferred from the mere fact of there being no national legislation upon the subject, unless in matters as to which the power of congress is exclusive. Where the power of congress is exclusive, the states have, of course, no power to legislate; and it may be said that congress, by not legislating, manifests an intention that there should be no legislation on the subject. But in matters over which the power of congress is par amount only, and not exclusive, the power of the state is not excluded until congress has legislated; and no intention that the states should not exercise, or continue to exercise, their power over the subject can be inferred from the want of congressional legislation. Transportation Co. v. Parkersburg, 107 U. S. 691, 702–704, 2 Sup. Ct. Rep. 732.

The true test for determining when the power of congress to regulate commerce is, and when it is not, exclusive, was formulated and established in Cooley v. Board of Wardens, 12 How. 299, concerning the validity of a state law for the regulation of pilots and pilotage, in which Mr. Justice CURTIS, in delivering judgment, said: "When the nature of a power like this is spoken of, when it is said that the nature of the power requires that it should be exercised exclusively by congress, it must be intended to refer to the subjects of that power, and to say they are of such a nature as to require exclusive legislation by congress. Now, the power to regulate conmmerce embraces a vast field, containing not only many, but exceedingly various, subjects, quite unlike in their nature; some imperatively demanding a single

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uniform rule, operating equally on the commerce of the United States in every port;@ and some, like the subject now in question, as imperatively demanding that diversity which alone can meet the local necessities of navigation. Either absolutely to affirm or deny that the nature of this power requires exclusive legislation by congress is to lose sight of the nature of the subjects of this power, and to assert, concerning all of them, what is really applicable but to a part. Whatever subjects of this power are in their nature national, or admit only of one uniform system or plan of regulation, may justly be said to be of such a nature as to require exclusive legislation by congress. He then stated that the act of congress of August 7, 1789, c. 9, § 4, (1 St. 54,) in regard to pilotage, manifested the understanding of congress, at the outset of the government, that the nature of the subject was not such as to require its exclusive legislation, but was such that, until congress should find it necessary to exercise its power, it should be left to the legislation of the states, because it was local, and not national, and was likely to be best provided for, not by one system or plan of regulation, but by as many as the legislative discretion of the several states should deem applicable to the local peculiarities of the ports within their limits; and he added, in words which appear to us equally appropriate to the case now before the court:

The practice of the states, and of the national government, has been in conformity with this declaration, from the origin of the national government to this time; and the nature of the subject, when examined, is such as to leave no doubt of the superior fitness and propriety, not to say the absolute necessity, of different systems of regulation, drawn from local knowledge and experience, and conformed to local wants.""We are of opinion that this. state law was enacted by virtue of a power residing in the state to legislate; that it is not in conflict with any law of congress; that it does not interfere with any system which congress has established by making regulations, or by intentionally leaving individuals to their own unrestricted action." 12 How. 319-321.

In Gilman v. Philadelphia, 3 Wall. 713, 730, this court, speaking by Mr. Justice SWAYNE, applying the same test, and relying on Willson v. Marsh Co. and Cooley v. Board of Wardens, above cited, upheld the validity of a statute of Pennsylvania authorizing the construction of a bridge across the Schuylkill river, so as to prevent the passage of vessels with masts; and, after stating the points adjudged in Brown v. Maryland and in the Passenger Cases, said: "But a state, in the exercise of its police power, may forbid spirituous liquor imported from abroad, or from another state, to be sold by retail, or to be sold at all, without a license; and it may visit the violation of the prohibition with such punishment as it may deem proper. License Cases, 5 How. 504." By the same test, and upon the authority of Willson v. Marsh Co., a statute of Wisconsin, authorizing the erection of a dam across a navigable river, was held to be constitutional in

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