to fill the country with infamous persons, or to debauch the public morals. Such is not the design of the Constitution; and if such a right shall be successfully asserted, it will soon prove that the federal and State governments cannot exist together. Such are the restraints which oppose the extension of federal power, in cases of apparent conflict, on the ground that it is supreme. A careful examination of the many decisions will prove that the court has anxiously studied to fix, as far as circumstances will permit, defi nite boundaries to sovereignty, leaving them to depend as little as possible upon questions of incompatibility or repugnancy. The police laws of the State have uniformly been maintained, on the ground that the States have a right to make them, and this right is not to be questioned, although in the exercise of it the laws and power of the United States are and must be affected, or the remedy against alarming evils be incomplete. It seems to me that the court have practically, and for the best of reasons, placed such laws on the ground that they emanate from exclusive and independent powers enjoyed by the States. This position has been gradually approached, with a watchful solicitude at every step taken in advance. In New York v. Miln (11 Peters, 102), a reexamination of the authorities was made, and the grounds of the opinion there delivered are stated with great clearness (p. 139). After discussing the principles so ably laid down in Gibbons v. Ogden, the learned judge says: "We do not place our opinion upon this ground. We choose rather to plant ourselves on what we consider impregnable positions. They are these, that a State has the same undeniable and unlimited jurisdiction over all persons and things within its territorial limits as any foreign nation, where that jurisdiction is not surrendered or restrained by the Constitution of the United States; that, by virtue of this, it is not only the right but the bounden and solemn duty of a State to advance the happiness, the safety, and prosperity of its people, and to provide for its general welfare by any and every act of legislation which it may deem conducive to these ends, where the power over the particular subject, or the manner of its exercise, is not surrendered or restrained in the manner just stated; that all those powers which relate to merely municipal legislation, or what may, perhaps, be more properly called internal po lice, are not thus surrendered or restrained; and that consequently, in relation to these, the authority of a State is complete, unqualified, and exclusive." This authority defines the great question of boundary between the sovereignties with an accuracy which cannot be mistaken, so far as regards police laws. The powers not conceded or prohibited by the 529*1 Constitution remain *in the States unchanged, unaltered and unimpaired, and as fully in force as if no Constitution had been made. None of those powers which relate to municipal legislation or internal police have been surrendered or restrained, but are complete, unqualified, and exclusive. If they are complete, the State has the whole and the sole enjoyment. If they are unqualified, they remain as they were, unaltered and unchanged. If they are exclusive, there can be no participation in them by another. The inference is irresistible, that such powers are independent of and paramount to the Constitution of the United States, and therefore not subject to any supreme power of the federal government in cases of conflict. This is but carrying out the provisions of the instrument, as they apparently stand. It is manifest, that the laws of the two governments must meet and mix, because the jurisdictions commingle, and the question is, Did not the framers of the Constitution intend it should be so? When they made that instrument, and gave to the United States the control over foreign commerce, and reserved to the States the police powers, they knew that life and health and property in the States must be provided for; and they knew then, as well as we do now, that it could not be done without an interference with foreign commerce. Did they not intend, then, when they granted this power to the United States, that it should be held and enjoyed subject to the exercise of these reserved powers in the States? Such at least is the effect of this decision, if language has any meaning; and this case does little more than carry out the principles which had been previously maintained in practice. The police laws had in fact every where been maintained against the supreme power of the United States, notwithstanding this obvious interference. The pressure of this principle of supremacy was forced upon the States with such zeal, and the supposed cases of incompatibility became so frequent, that the exigencies of the times demanded a positive rule to the extent that it could be safely established. The step was taken eleven years ago, and what inconvenience has been experienced? In what has the power of the United States been impaired or disturbed? Who has sensibly felt any change? Whose interests have not been well provided for, and safely protected? Much has been said and sung by the theorists; but the laws have been well harmonized, and the public have been well satisfied. In regard to constitutional principle, this case is decisive of the one under consideration, as it admits the authority of a State to maintain *police regulations in regard to its [*530 internal affairs, whatever may be their effect or influence upon the laws of the United States. All this is conceded when the power of the State is declared to be complete, unqualified, and exclusive. (Commonwealth v. Kimball, 24 Pick., 365; Pierce, in error, v. New Hampshire, Law Reporter, Sept., 1845.) I have thus far, in speaking of constitutional power, assumed that the law of Massachusetts is a police measure, made in good faith, to regulate the traffic in intoxicating drinks. This has, however, been questioned, on the supposition that it is, in fact, a regulation of foreign commerce. It becomes necessary to look into its provisions, to ascertain whether they are adapted to the professed object, or designed to cover up a specious fraud. The act requires all retailers, who sell in less quantities than twenty-eight gallons at a time, to first obtain a license from the proper authority. The retailers are tavern keepers, and small grocers, living wherever there is travel and population. The design of the law is manifesty to prevent tippling and disorder, by promoting temperance and sobriety; and, whether it be a regulation of trade or police, or both, relates to affairs com pletely internal, Is this a suitable matter to engage legislative attention? Does such a traffic demand restraint, or does the Legislature employ it as a pretext to regulate foreign commerce? I have already dwelt sufficiently on this point, and have proved that intemperance is everywhere deprecated and deplored, that the world has raised its voice in remonstrance against an indiscriminate traffic in wines and spirits, and it seems to me that if health, morals, usefulness, and respectability are worthy of public consideration, and merit protection against an insidious foe, the Legislature would be criminal ly guilty in wholly disregarding a matter of such obvious importance; and that the exercise of the power needs no justification. But are the provisions of the law suited to the professed object? The evident end in view is to place the trade in safe and suitable hands, in the custody of those who will use without abusing it, and mitigate, instead of aggravating, the evils incident to it. To carry this principle out, the law authorizes the county commissioners, who are elected by the people, and supposed to be an exponent of public opinion, to license as many innholders and retailers as the public good requires. Can anyone desire more? If suitable persons are to be selected, the mode is probably as unobjectionable as any which can be devised; but if no selection is to be made, as is contended, and all persons are to have a right to demand a license, a law, with such provisions, would cease to be a regulation, and had better be abolished. 531*] *Another feature of the law is, that it makes no discrimination between foreign and domestic wines and spirits, but deals with all alike. This would seem to furnish sufficient proof that it has no special reference to the importing trade, but aims at a general regulation, and is designed to promote temperance and not to regulate foreign commerce. When these facts are taken in connection with the antiquity of the policy, no reasonable doubt can exist as to the good faith and sincerity of purpose in the Legislature. But it is objected to the law, that the commissioners may so exercise their discretion as to impair or defeat the revenue. This argument supposes that judicial officers will abuse their authority. But it is not a question as to the manner of using power, but of right. A discretion is reposed in all judicial tribunals, where facts are to be ascertained as the foundation of a judgment. In all such cases, the law may be perverted; but the abuse is proof of misconduct in the officer, and not of the unconstitutionality of the law. Whether an applicant for a license is a suit- 1 able person, and whether the public good requires the grant to be made, are facts to be ascertained, which must depend upon evidence; and the questions cannot be decided without an exercise of judgment. It is difficult to comprehend how a selection of suitable persons, or of suitable places, can be made, without the exercise of so much discretion as such a decision implies. There is, in fact, no intermediate ground between this and indiscriminate traffic. But it is further objected to this system, that its whole tendency is to reduce consumption, and to diminish the revenue. The State has a right to regulate its internal trade, and to maintain police laws. No condition is annexed to this right, which requires the State to exercise the power without impairing the revenue upon imports. The law may have some remote effect on the revenue; but what law or principle of the Constitution for bids it? There can be no repugnancy or incompatibility till the powers of the United States to raise revenue is substantially defeated. Of such a state of things there is no proof. On the contrary, the license laws have been in operation for fifty-six years with the revenue system, and no sensible or noticeable effect has been produced; not enough even to make it a topic of discussion. If the whole revenue from this source were dried up, it could have little tendency to defeat or control the financial power of the Unit ed States, which is too broad and ample in resources to be materially affected by any such legislation. But the argument proves too much-it denies to a State the right to make a law which tends to impair the revenue of the United States. The right of taxation is concurrent, and may be and is exercised by both govern- [*532 ments upon the same persons and property. This is an undeniable right in a State, and yet it is manifest that it cannot be exercised without impairing the resources of the United States. Slaves are taxable property, and cannot be emancipated without diminishing the resources of revenue; but will it be contended that a law of emancipation is unconstitutional for that cause? So, too, laws which establish market days, and forbid sales upon the Sabbath, have a tend ency to restrain indiscriminate traffic. Without, however, pursuing this reasoning. which might be easily extended, I deny that a diminution in the consumption of wines and spirits raises any presumption that the general revenue is impaired by the process. On the contrary, my belief is, that, if the facts were to undergo the severest scrutiny, it would turn out quite otherwise. It has never been main tained that a free use of wines and spirits has any tendency to promote public prosperity. nor is it denied that an excessive use is mani festly prejudicial. There can be no doubt, that where abstinence or severe temperance prevails accumulation is increased and the means of subsistence enlarged. These ordinarily go to support existence, and, creating a greater expenditure in the necessaries and comforts of life, contribute in other forms to the revenue, giving a gain instead of a loss. But it is urged that the commissioners may press their powers so far as to exclude consump. tion; and if they should, the revenue would probably suffer in no respect, as the general prosperity would be improved. But, aside from this consideration, I apprehend there is no objection to such a step. Police laws may be carried to any extent which the public welfare demands. If the health, the morals, and the welfare of the public demand | the exclusion of an evil, there is a right to shut it out, regardless of revenue and of private interests. This power may and should be exer cised just to the extent which the public exigency demands. Such is the long established practice in regard to health. If the cargo of a vessel is in fected and dangerous, it is destroyed; and all revenue and private interests are sacrificed for the public safety. Gunpowder is required to be landed and stored in a way which saves life and property from jeopardy. Ballast is required to be deposited where it does no mischief to navigation. The publication, by sale or otherwise, of obscene books, prints, pictures, &c., is an indictable offense Yet all such laws are undeniably constitutional, and are maintained as police regula tions on the ground that the public health, morals, and property demand protection. The right to give this protection has never been successfully questioned; and it is evident that legal provisions in such behalf must be such as to meet the emergency. If excessive indulg ence in the use of intoxicating drinks be an evil-and no one will question it-it is the right 533*] of the Legislature to guard against it by wise and prudent regulations; and such regulations obviously fall within the principle which sustains the laws referred to. If the evil be such as to demand stringent provisions, reaching to exclusion, there is no constitutional objection to such legislation. But it is further urged, and some reliance seems to be placed upon it, that the county commissioners of Essex do in fact suppress sales by refusing to grant any licenses. If such were the fact, the presumption would be, that they have done it because their duty required it, unless the contrary is proved. In New York v. Miln, the court pronounce pauperism to be a moral pestilence; but pauperism is but one of the many plagues which follow intemperance. In this case, however, there is no proof of such an exercise of power by the commissioners. It does not appear that the plaintiff in error, or anyone else, ever applied for and was refused a license, and an alleged abuse of power cannot be presumed in the absence of all proof. Before the plaintiff can lay any foundation for just cause of complaint, he must prove that he applied, being a suitable person for such an employment, and was refused, when the public good demanded that a license should be granted. manner, I have no doubt they will justify their decisions, whatever they may be. Another objection which has been urged against the law of Massachusetts is hostility to the policy of the United States. What is the policy of the United States on this subject? Are we to infer, without proof, that the United States are not equally interested with the State in promoting good morals, in protecting health, in preventing the waste of property and the increase of crime? How can the United States have less at stake than the State, or be less interested in cherishing the virtues which make a good population, or in discouraging the vices which lead to the opposite result? On what ground can the promotion of sobri ety and temperance be hostile to the policy of the United States? Is it their purpose to debauch public morals, to encourage a lavish waste of property, and to multiply crimes, from the mercenary consideration of deriving revenue from a process of degredation? Does the policy of the United States war with the best interests of society, and are they anxious for revenue at such sacrifices? What proof is there of such an unnatural state of things? It is supposed that the United States countenance an indiscriminate traffic, because they permit wines and spirits to be imported, and lay upon them a duty. This naked [*534 fact is alleged to be evidence of a declared purpose to raise the utmost revenue which can be realized, and that a law interfering with this design is unconstitutional? If this be so, then the law of Massachusetts which punishes habitual drunkenness is unconstitutional, for it diminishes consumption; and the law which authorizes the appointment of guardians over such persons must share the same fate, as well as all other laws which in any way regulate trade so as to impose any restraint upon it. But there is more decisive and satisfactory evidence of the policy of the United States than such remote, uncertain inferences. In 1838, Congress invited the army to abandon the use of the spirit ration, and offered by law a substitute to all who would accept it, in sugar and coffee; and the same principle has been carried into the navy, and has met with approbation in both branches of the service. În 1813, Congress passed a law (3 Stat. at Large, 73), in which there is a clear and decisive expression of opinion. This law imposed internal taxes, and the collectors are authorized to grant licenses to sell at retail wines, distilled spirits, or merchandise, “ provided always that no license shall be granted to any person to sell wines, distilled spirituous liquors, or mer chandise as aforesaid, who is prohibited to sell the same by any State." Here is a clear expression of the views of Congress in regard to State legislation and State He makes no such case on the record, but policy. It shows the deference and respect places the law itself on trial, instead of the ad- which is considered to be due to so important ministration of it, and relies upon the proof and delicate a subject, by conforming its legiswhich it contains on its face of its unconstitu- lation to that of the States, and adopting this tionality. policy. The law is now repealed, because the The commissioners are not and cannot be tax is abolished, but the opinion loses none of placed on trial by this record, and whenever its weight or importance from that considertheir conduct shall be arraigned in a properation. But the case of Brown v. Maryland (12 Wheat., 419) is supposed to give some support to this position. A law of Maryland forbid importers and venders in the original package the right of selling without first obtaining a license, for which fifty dollars were exacted. Brown, being such an importer *and vender, violated [*536 the law, was prosecuted, and the case finally decided by this court. Again, it has been suggested that the revenue gress has no power or right to regulate that laws, which permit wines to be imported in traffic. They have, however, never been unbottles, and brandy in kegs of fifteen gallons, derstood to have any such bearing: but to be are evidence that Congress intended to confer what they purport, regulations of imports and a right to sell in such quantities, and therefore exports. the law of Massachusetts is repugnant to them. This argument rests on the supposition that Congress has the right to regulate the internal trade of a State, while it is admitted that States alone possess this right. If, therefore, such were the intention of Congress, the acts would be void for unconstitutionality; for the federal government cannot claim a power denied to it. But there is no reason for believing that those provisions were made with reference to any such object. They relate wholly to the custom-house and to exportation. Such is known to be the history of the fifteen gallon kegs, and the same is doubtless true of wines. It is a regulation of convenience, and de535*] signed to keep the import *trade in a form to prevent smuggling and frauds, either in importation or exportation. These considerations go to maintain the conclusion that the law of Massachusetts was made in good faith, and for the purposes indicated by it; that it is derived from powers distinctly reserved to the State, and is a regulation both of the internal commerce and police; that its provisions are adapted to the purposes for which they are designed; that it is not a regulation of foreign commerce, or of the revenue system, and does not affect either unlawfully; and that it is not hostile to the policy or interests of the United States. It is evident, also, that it is sustained as a police measure by the whole current of authority antecedent to, as well as by, the case of New York v. Miln. The plaintiff in error next contends, that an importer of wines and spirituous liquors has a right to sell them in the same vessels in which they are imported. He then alleges that wines may be imported in bottles, and brandy in kegs of fifteen gallons, while the law of Massachu setts prohibits the sale in less quantity than twenty-eight gallons, without a license. For the purposes of this case I might concede the position, for the plaintiff is not indicted for selling wines in the original bottle, or brandy in the original keg; but for dealing out spirituous liquors by retail in small quantities, from a quart or pint to a gallon. The record does not show that he is an importer and vender in the original package or vessel, or that he ever had wine in bottles or brandy in kegs of fifteen gallons. If, therefore, the original importer has such a privilege, this plaintiff can make no pretension of right to it. But from what authority is this right to sell in the original vessel derived? The laws of the United States do permit the importation of wines in bottles, and brandy in kegs of fifteen gallons. Formerly, brandy could not be brought in, in vessels of less capacity than ninety gallons; but the quantity was reduced, as is well known, to favor the export to Mexico, where so large a quantity could not be taken into the interior upon pack horses. But if these laws were intended, as is supposed, to regulate the internal trade of the States, they could not be sustained, as Con i The court held, first, that the law of Maryland was a revenue act imposing a tax; Second, that such a tax, imposed upon the importer as such, and before any right of sale could be exercised, was a duty on imports, and expressly prohibited by the plainest terms of the Constitution, which forbids the States the right to lay duties on imports; Third, that such a duty, so levied, is a regu lation of foreign commerce, and for that reason also unlawful. The decision goes no further than to deny the power of a State to impose a tax upon the importer, as such, before he has made a sale; because this is, in effect, a duty on imports. There is nothing in the case which questions the right of a State to exercise police power over imports and importers, for any of the great purposes to which such legislation is directed. The principles which govern the decision are laid down with a clearness which cannot be mistaken. The exemption from taxation is limited to the importer, and to a sale by him in the original package. The mischievous consequences of a more extended exemption were foreseen and guarded against, in order to leave the internal affairs of the States untouched. The court, to prevent all misapprehensions, declare that a sale of such goods, a breaking up of the packages, or an appropriation of the articles to use, or any similar act, mixes the goods with the mass of property in the State, and extinguishes the privilege. The exemption is therefore limited to the importer and vender by the original package, and is denied to all others. The authority, consequently, furnishes no support or countenance to the case under consideration, as the plaintiff was neither an importer or vender by the original package. But if the plaintiff were an importer, instead of a retailer, the case of Brown v. Maryland would furnish no justification for a violation of the law of Massachusetts. The law is not a revenue act, but a police measure. It imposes no tax upon imports, and therefore does not fall within the prohibitory clause of the Constitution. The difference between the laws is this: the State of Maryland exercised a power prohibited, while the State of Massachusetts founds its legislation upon one which is conceded. The health laws, quarantine laws, ballast laws, &c., prove that the police power may be extended to imports and importers, if the public safety or welfare demands it. If I am right, therefore, in assuming that the traffic in wines and spirits is a suitable object for regu- All the important questions which have been raised in the case have now been considered, imperfectly, no doubt; but, having been brought to the notice of the court, they will receive the consideration which their importance deserves. The course of reasoning pursued is intended to establish the following positions: 1. That the traffic in wines and spirituous liquors has, in the public judgment, as expressed through ages and centuries, demanded restraint and regulation. That, the United States having no powers to impose such restraint, if it be denied to the States, the right is abolished. That such a result would be alike injurious to both parties, and desired by neither. That, under such circumstances, the court would be justified in declaring the law void only by commanding necessity, and that no such emergency exists. completed, so far as foreign commerce is concerned, and their power exhausted. 6. That, in whatever aspect this case is viewed and considered, the law of Massachusetts cannot be drawn into doubt by the severest scrutiny; nor can the power of the United States be made to reach or control it without a manifest invasion of the rights reserved to the State by the terms of the Constitution. The counsel then closed his remarks by adverting to the importance which the question had acquired by being long a subject of earnest controversy and agitation. Many prosecutions were now pending, and, the public being anxious to be relieved from this state of suspense, he hoped the matter would be brought to a speedy and final issue. What that issue would be, it did not become him to anticipate; but he would venture to give assurance that the people of Massachusetts would acquiesce in it, and give their support to the law as expounded by this tribunal, to which they looked at all times with the deference and respect due to those who settle the greatest of all questions, the boundaries of power. Mr. Webster, in reply, said that he agreed with the learned counsel who had just con2. That, in the partition of powers between cluded his argument in many of the posithe federal and State governments, the rights tions which he laid down. It was true that the of the former are granted and enumerated in retail trade should be regulated, and that intemthe Constitution, while the latter retain all pow-perance was a great evil. Even if he differed ers not granted or prohibited by that instru ment. That the grant of a right to regulate foreign commerce excludes the right to regulate domestic commerce, which is left in the States. That the right to make police regulations is also left in the States. That the law of Massachusetts belongs to these classes, and is derived from lawful, constitutional power vested in the State. 3. That, if the right of a State to maintain police laws is complete and unqualified, there can be no constitutional conflict with the laws of the United States, as the power is absolute and supreme. But whether this be so or not, the right of the State to regulate its internal traffic and police is acknowledged, and can never be questioned, except in cases of manifest incompatibility or direct repugnancy, and there is no proof that the law of Massachusetts has any such action, effect, or influence on the powers or laws of the United States. 4. That the United States having a right to regulate foreign commerce is bounded by the point where such commerce becomes internal, and cannot follow it for the purposes of regulation or control after it becomes subject to State authority, without usurping the constitutional power of the State. 5. That the plaintiff in error was indicted and convicted for retailing spirits without a license, being neither an importer nor vender of such spirits in the same vessels and quantities as imported. That if he had been such an importer and vender, it would avail him nothing, as the question before the court does not relate to taxation, or fall within the prohibitory clause of the 538*] Constitution, but *regards the right of the State to regulate its internal commerce and police after the work of the United States is from the State in the policy of these laws, he claimed neither for himself nor the court a power to review her decision upon that point. The State was the sole and uncontrolled judge of her policy. But the question here was one of authority, and not policy. Has Massachusetts the power to pass such laws? Whether she has or not, it is useless to inquire into her motives for passing them. It is admitted by all, that the United States have power to regulate commerce; and it is also admitted by all, that the States have certain police powers. So far, there is no difference of opinion. But the learned counsel says that these powers stand upon equal ground, both resting on sovereignty; and his inference is, that, in case of conflict, one has as much right to stand as the other. Here our difference of opinion commences. We say that these powers do not stand upon equal elevation, but, if there be a conflict between them, the State law must yield; because the Constitution says that acts of Congress, passed within the scope of the constitutional power of Congress, are the supreme law of the land. There can be no conflict. The State law must recede. It has been so settled by this court. In 3 Wheat.. 209, 210, it is so laid down, in the very terms which I use. Let us see, therefore, whether both laws, that is to say, the State law and the acts of Congress, can stand. What are they? The former laws of Massachusetts made it ob ligatory to grant *licenses. The phrase [*539 was "authorized and directed' to grant, &c. But under the Act of 1837 they may be withheld altogether, and the fact is, that for some years past none have been granted. Now, there is no difference, in substance, between an absolute prohibition of licenses by law, and a grant of power to another body to withhold them. In both cases, the same result is produced by the action of the same authority, namely, the State. What is this result? It is, |