sold it; and they claim the right of importers | States," under the restrictions in the Constituto sell without à license. tion, 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 li cense 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. The 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. 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 If the mere conveyance of property from one preference shall be given by any regulation of State to another shall exempt it from taxation, commerce or revenue to the ports of one State and from general State regulation, it will not over those of another; nor shall vessels bound be difficult to avoid the police laws of any to or from one State be obliged to enter, clear, State, especially by those who live at or near or pay duties in another." And it is supposed, the boundary. If this tax had been laid on that the declaration, that no State, without the property as an import into the State, the the consent of Congress, shall lay any impost law would have been repugnant to the Constior duties on imports or exports, except what tution. It would have been a regulation of may be absolutely necessary for executing its commerce among the States, which has been inspection laws," refers to foreign commerce. exclusively given to Congress. One of the A revenue to the general government could objects in adopting the Constitution was, to never have been contemplated from any regu- regulate this commerce, and to prevent the lation of commerce among the several States. States from imposing a tax on the commerce of Countervailing duties, under the Confedera- each other. If this power has not been deletion, were imposed by the different States to gated to Congress, it is still retained by the such an extent as to endanger the confederacy. States, and may be exercised at their discretion, But this cannot be done under the Constitution as before the adoption of the Constitution. by Congress, in whom the power to regulate For if it be a reserved power, Congress can commerce among the States is vested neither abridge nor abolish it. 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 for- | eign commerce he is spoken of in that light. In Brown v. The State of Maryland (12 Wheat., 443) the court say, the act of Maryland "de nies 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 595*] the thing imported, *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 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, or account *of their having transported [*596 this property from Massachusetts to New Hampshire. I affirm the judgment of the State court. JOEL FLETCHER. THE 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 Constitu Mr. Justice CATRON: PEIRCE ET AL. v. NEW HAMPSHIRE. tion of the United States which provides, of Congress passed in pursuance of it. I there“that the Congress shall have power to lay fore affirm the judgment of the Supreme Court. and collect taxes, duties, imports, 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. The State of Massachusetts, and Peirce et al. v. The 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 Massa chusetts 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. 66 597*] *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 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 to the two following [*598 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 irtroduced 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 599*] bearing on the commerce 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 op erates 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, *is of a description to [*600 be regulated by that power in the State, then the regulation may be made by the State, and Congress cannot interfere. But this must always depend on facts, subject to legal ascertainment, so that the injury may have redress. And the fact must find its support in this, whether the prohibited article belongs to, and is subject to be regulated as part of, foreign commerce, or of commerce among the States. If, from its nature, it does not belong to commerce, or if its condition, from putrescence or other cause, is such when it is about to enter the State that it no longer belongs to commerce, or, in other words, is not a commercial article, then the State power may exclude its introduction. And as an incident to this power, a State may use means to ascertain the fact. And here is the limit between the sovereign power of the State and the federal power. That is say, that which does not belong to commerce is within the jurisdiction of the police power of the State; and that which does belong to commerce is within the jurisdiction of the United States. And to this limit must all the general views come, as I suppose, that were suggested in the reasoning of this court in the cases of Gibbons v. Ogden, Brown v. The State of Maryland, and New York v. Miln. What, then, is the assumption of the State court? Undoubtedly, in effect, that the State had the power to declare what should be an article of lawful commerce in the particular State; and, having declared that ardent spirits and wines were deleterious to morals and health, they ceased to be commercial commodities there, and that then the police power attached, and consequently the powers of Congress could not interfere. The exclusive State power is made to rest, not on the fact of the state or condition of the article, nor that it is property usually passing by sale from hand to hand, but on the declaration found in the State laws, and asserted as the State policy, that it shall be excluded from commerce. And by this means the sovereign jurisdiction in the State is attempted to be created, in a case where it did not previously exist. If this be the true construction of the constitutional provision, then the paramount power of Congress to regulate commerce is subject to a very material limitation; for it takes from Congress, and leaves with the States, the power to determine the commodities, or articles of property, which are the subjects of lawful commerce. Congress may regulate, but the States determine what shall or shall not be regulated. Upon this theory, the power to regulate commerce, instead of being paramount over the subject, would become subordinate to the State police power; for it is obvious that the power to determine the articles which may be the subjects of commerce, and thus to circumscribe its scope and operation, is, in effect, the controlling one. The police power would not only be a formidable rival, but, in a struggle, must necessarily triumph over the commercial pow601*] er, *as the power to regulate is dependent upon the power to fix and determine upon the subjects to be regulated. The same process of legislation and reasoning adopted by the State and its courts could bring within the police power any article of consumption that a State might wish to exclude, whether it belonged to that which was drank, or to food and clothing; and with nearly equal claims to propriety, as malt liquors and the produce of fruits other than grapes stand on no higher grounds than the light wines of this and other countries, excluded, in effect, by the law as it now stands. And it would be only another step to regulate real or supposed extrav agance in food and clothing. And in this connection it may be proper to say, that the three States whose laws are now before us had in view an entire prohibition from use of spirits and wines of every description, and that their main scope and object is to enforce exclusive temperance as a policy of State, under the belief that such a policy will best subserve the interests of society; and that to this end, more than to any other, has the sovereign power of these States been exerted; for it was admitted, on the argument, that no licenses are issued, and that exclusion exists, so far as the laws can produce the result-at least, in some of the States-and that this was the policy of the law, For these reasons, I think the case cannot depend on the reserved power in the State to regulate its own police. Had the gin imported been “an import" from a foreign country, then the license law prohibit ing its sale by the importer would be void. The reasons for this conclusion are given in my opinion on the case of Thurlow v. The Commonwealth of Massachusetts, and need not to be repeated, and are founded on the case of Brown v. The State of Maryland. The next inquiry is, did it stand on the foot of "an import, coming, as it did, from another State? If it be true, as the State courts held it was, that Congress has the exclusive power to regulate com merce among the States (the States having none), and the gin introduced being an article of commerce, and the State license law being a regulation of commerce (as it was held by this court to be in the case of Brown v. The State of Maryland), then the State law is void, because the State had no power to act in the matter by way of regulation to any extent. This narrows the controversy to the single point, whether the States have power to regulate their own mode of commerce among the States, during the time the power of Congress lies dor ག mant, and has not been exercised in regard to such commerce. Although some regulations have been made by Congress affecting the coasting trade, requiring manifests of cargoes where they exceed a certain value, to prevent smuggling, and for other purposes, still, no regulation exists affecting, in any degree, such an import as the one under consideration. It must find protection against the State law under the Constitution, or it can have none. This is also true as *respects similar articles of commerce [*602 passing from State to State by land. Congress has left the States to proceed in this regard as they were proceeding when the Constitution was adopted. Is, then, the power of Congress exclusive? The advocates of this construction insist, that it has been settled by this court that the power to regulate commerce is exclusive, and can be exercised by Congress alone. And the inquiry in advance of further discussion is, Has the construction been thus settled? The principal case relied on is that of Gibbons v. Ogden (9 Wheat., 1), in support of the assumption. In that case a monopoly had been granted to the inventors of machinery propelled by steam, which, when applied to vessels, forced them through the water. The law of monopoly of New York extended to the tide waters, and for navigating these with two steamboats belonging to Gibbons, a bill was filed against him, and he was enjoined by the State courts of New York; and in his answer he relied on licenses granted under the Act of 18th February, 1793, for enrolling and licensing ships and vessels to be employed in the coasting trade, and for regulating the same. This was the sole defense. The court first held that the power to regulate commerce included the power to regulate navigation also, as an incident to, and part of, commerce. After discussing many topics connected with, or supposed to be connected with, the subject, the power of taxation was considered by the court, and the powers to tax in the States and the United States compared with the power to regulate commerce, and in this connection the Chief Justice, delivering the opinion of the court, said: "But, when a State proceeds to regulate commerce with foreign nations, or among the several States, it is exercising the very power granted to Congress, and is doing the very thing which Congress is authorized to do. There is no analogy, then, between the power of taxation and the power of regulating commerce. In discussing the question, whether this power is still in the States, in the case under consideration, we may dismiss from it the inquiry, whether it is surrendered by the mere grant to Congress, or is retained until Congress shall exercise the power. We may dismiss that inquiry, because it has been exercised, and the regulations Congress deemed proper to make are now in full operation. The sole question is, Can a State regulate commerce with foreign nations, and among the States, while Congress is regulating it?" And then the court proceeds to discuss the effect of the licenses set up in Gibbons's answer, and gives a decree of reversal, on that sole question, in his favor. The decree says: "This court is of opinion that the several licenses to the steamboats the Stoudinger and the Bellona | not be taxed a second time in the hands of the to carry on the coasting trade, which are set importer. up by the appellant, Thomas Gibbons, in his answer, which were granted under an act of Congress passed in pursuance of the Constitution of the United States, gave full authority to 603*] those vessels to navigate *the waters of the United States, by steam or otherwise, for the purpose of carrying on the coasting trade, any law of the State of New York to the contrary notwithstanding." And then the State law is declared void, as repugnant to the Constitution and laws of the United States. (9 Wheat., 240.) Neither of these cases touch the question of exclusive power, nor do I suppose it [*604 was intended by the writer of the opinions to approach that question, as he studiously guarded the opinion in the leading case of Gibbons v. Ogden against such an inference, and professedly followed the doctrines there laid down in Brown v. The State of Maryland. This case, then, decides that navigation was within the commercial power of the United States, and that a coasting license granted pursuant to an act of Congress, in the exercise of the power, was an authority under the supreme law to navigate the public waters of New York, notwithstanding the State law granting the monopoly. This decision was made in 1824. Three years after (1827) the case of Brown v. The State of Maryland came before the court. 412 Wheat., 419.) Brown, an importing merchant, had been indicted for selling packages of dry goods in the form they were imported, without taking out a license to sell by wholesale. To this he demurred, and the demurrer was sustained, on the ground that "imports" could be sold by the importer regardless of the State law, on which the indictment was founded. Two propositions were stated by the court, and the decision of the cause proceeded on them both, and was favorable to Brown: First, The provision of the Constitution which declares that "no State shall, without the consent of Congress, lay any imposts or duties on imports or exports. And, second, That which declares Congress shall have power to regulate com merce with foreign nations, and among the several States, and with the Indian tribes. The first proposition has no application to the controversy before us, as here no tax or duty was imposed. 2. The court proceeds (p. 446) to inquire of the extent of the power, and says: "it is complete in itself, and acknowledges no limitations, and is co-extensive with the subject on which it operates. And for this Gibbons v. Ogden is referred to, as having asserted the same postulates. The opinion then urges the necessity that Congress should have power over the! whole subject, and the power to protect the imported article in the hands of the importer, and proceeds to say: "We think it cannot be denied what can be the meaning of an act of Congress which authorized importation, and offers the privilege for sale at a fixed price to every person who chooses to become a purchaser." We think, then, that if the power to authorize a sale exists in Congress, the conclusion that the right to sell is connected with the law permitting importation, as an inseparable incident, is inevitable." Two points were decided on the second proposition: 1st. That a tax on the importer was a tax on the import. 2d. That an import," which had paid a tax to the United States according to the regulations of commerce made by Congress, could The next case that came before the court was that of Wilson et al. v. The Black Bird Creek Marsh Company, in 1829 (2 Peters, 257). The Chief Justice again delivered the opinion of the court, as he had done in the two previous cases. The company was authorized to make a dam across the creek under a State charter. The creek was a navigable tide water; the dam was constructed, and the licensed sloop of Wilson not being enabled to pass, he broke the dam. and the company sued him for damages; to which he pleaded, that the creek was a naviga ble highway, where the tide ebbed and flowed, and that he only did so much damage as to allow his vessel to pass. The plea was de murred to, and there was a judgment against Willson in the State court. It was insisted on his behalf in this court that the power to regulate commerce included navigation; and that navigable streams are the waters of the United States, and subject to the power of Congress; and the case of Gibbons v. Ogden was relied on. The Chief Justice in the opinion said: "The counsel for the plaintiff in error insists that it comes in conflict with the powers of the United States to regulate commerce with foreign nations, and among the several States. "If Congress had passed any act which bore upon the case, any act in execution of the power to regulate commerce, the object of which was to control State legislation over those small navigable creeks into which the tide flows, and which abound throughout the lower country of the middle and southern States, we should feel not much difficulty in saying, that a State law coming in conflict with such act would be void. But Congress has passed no such act. The repugnancy of the law of Delaware to the 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. We do not think that the act empowering the Black Bird Creek Marsh Company to place a dam across the creek can, under all the circumstances of the case, 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." Here the adjudications end. But judges. who were of the court when the three cases cited were determined, differ as to the true meaning of the Chief Justice in the language employed in the case of Gibbons v. Ogden, in illustrating the Constitution in aspects supposed to bear more or less on the questions before the court; such, for instance, as that the commercial power was a unit, and covered the entire subject matter of commerce with foreign nations and *among the States; and [*605 that navigation was included in the power. In |