of allowing the reserved to restrict the granted power. No regulation of commerce, for example, can debar the State from its sovereign right to protect the life of its people, by quarantine laws; and an intrusive regulation of commerce, which would force disease into the State, may be forbidden by her sovereign power.

And it follows, that as the means necessary to give effect to the granted power are presumed to be within the powers of Congress, so a fortiori the means necessary to conserve the reserved right are within the compass of State authority.

The true construction in the case of such conflict is that, in so far as the regulation of commerce trenches upon the police power of the State, it is void; and vice versa. Whatever is bona fide a legitimate exercise of the police power will be valid, though it interferes with the commercial regulation. Whatever goes beyond this legitimate bound is void.

By reference to the declaration of rights of the Continental Congress, dated Oct. 14, 1774, Journal of Congress, vol. 1, p. 28, res. 4, it will be seen that the distinction is drawn between the imperial power of Parliament to regulate commerce, when "bona fide restrained" to that object and to securing commercial advantages to the country, and the power to regulate all cases of" internal polity,” indefeasibly residing in the colonies; and further, that this regulation of commerce did not draw with it the power of taxation.

This historic distinction, on which the revolution of 1776 was based, presided as a supreme idea in the convention of 1787; and marks the line between the power of Congress to regulate commerce and that of the State to control its internal polity. And in the case of Gibbons v. Ogden, ubi supra, it is laid down by Ch. J. Marshall, that this distinction is a sound one-that, though the same means may be used by Congress and the State,

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Wise, Governor.

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Wise.

Governor.

it does not follow that they are to be held as the exercise of the power to regulate commerce by both; that Congress must recognize the quarantine and health laws of the State, and cannot, by commercial regulations, interfere with them; and that it can control them only so far as may be necessary for the regulation of commerce. See his opinion, 203 to 206.

If, then, a State may protect the life and health of its citizen, is it not equally a right of the State to protect his property from being carried off by an irresponsible party? And if it be constitutional, because necessary for the purpose of preserving health, that a State inspector should board the vessel and examine it, is it the less constitutional for a State to require an inspection of an outgoing vessel, to see whether, under the license of a congressional regulation of commerce, it is not violating her criminal law, and stealing the property of her citizen?

A State may tax a licensed vessel, as the property of her citizen. The license is under commercial regulation-her tax under her internal polity. A vessel may bring in gunpowder under her license; but the State may forbid its being brought ashore under circumstances dangerous to her people. Brown v. State of Maryland, 12 Wheat. U. S. R. 419, opinion of Ch. J. Marshall, p. 443-4.

Now I admit that, in the broadest sense of the term, all these State police regulations may be regarded as regulations of commerce, because they affect commerce. But they are not intended as such, and regulate commerce incidentally, or rather accidentally.

Congress cannot, by licensing a vessel, give it license to commit crime against a State. The State, by preventing it from committing crime, does not revoke her li cense, or even restrict its legitimate province. Congress may give license, but the State may forbid its use to the injury of her people. As Congress has no power to li

cense a vessel to violate State law, so it is no infringement of the license to require the vessel to forbear from crime, or to be inspected to see if it is being used to violate a law of the State, or to secrete and carry away a

citizen's property.

The license acts on the vessel as a carrier-as an agent of commerce. The State law acts upon its owner as a man capable of wrong doing, and on his vessel as an available instrument for the purpose. The orbits of the two powers are thus separate and distinct, and, though tangential, do not intersect.

The distinction drawn by the Supreme Court in the case of Brown v. State of Maryland, 12 Wheat. U. S. R. 419, is illustrative of the distinction I make in this case. When the tax power of the State begins, as to an imported article, and the right of the importer under the duty paid on the imported article ceases, was considered there. In the transitus it was beyond the reach of State power; as soon as it passed it, that power attached to it.

Take another case-that of incendiary publications sent through the mail. Congress may authorize the carriage of letters and papers by mail; and the State cannot prevent it. But the delivery and circulation of such as are dangerous to the State, she may forbid; and Congress cannot enforce the delivery or circulation. The limit between the postal power and the police power in that case is in strong analogy to this case.

But authorities are not wanting to sustain this view. The Supreme Court, in City of New York v. Miln, 11 Peters U. S. R. 102, decided that a law of New York, which requires the master of a vessel entering the port of New York to make a report in writing to the mayor, containing the names, ages, last legal settlement of every passenger who shall have been on board. during the voyage, and inflicting a penalty for failure,

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Baker
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Wise,
Governor.

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Wise, Governor.

was valid and constitutional as a regulation of police; and was not a regulation of commerce. And Judge Barbour, in delivering the opinion of the court, (p. 140,) says: "We suppose it to be equally clear that a State has as much right to guard by anticipation against the commission of an offence against its laws, as to inflict punishment upon the offender after it shall have been committed"; and this was said as to a right to protect the State against the ingress of pauper foreigners. The whole case is conclusive of this.

The same court, in Smith v. State of Maryland, 18 How. U. S. R. 71, held that a State law forfeiting a li censed vessel attempting to take oysters in the waters of Maryland was valid. If a State law may forfeit a vessel for taking oysters, why not for taking a slave? And if, as in City of New York v. Miln, a State may take measures to prevent crime, as well as punish it, why may not the State inspect a vessel to see if there be stolen slaves on board, if it may forfeit for the theft if they be found?

This power to regulate commerce-what is it? "Regulate" is not so comprehensive as "legislate." It is, as already remarked, equivalent to the terms "to make rules. and regulations respecting." It has reference to order and method. It does not create-nor can it destroy; it only gives order to a pre-existing thing. It is passive, until other action brings the subject into being which it is to control. To regulate commerce does not carry with it the power to do everything which may influence commerce, or to forbid everything by others which may

do so.

Each house may regulate its own proceedings; Con. gress may make regulations for the land and naval forces. regulations for the territories and other property of the United States-may regulate the value of coin, and may regulate commerce. Regulation relates to things-law applies to persons. The instruments of carriage, the

modes of carriage-the regulations for outgoing and entry of vessels-these are regulations of commerce-regulations of the thing called commerce. But the persons who carry it on the things carried-are not commerce; and are within State jurisdiction. The license of the vessel avails to make it a legal instrument of carriage. Its use as such may be regulated by Congress. But the vessel and the owner, and the property taken on board from the State, cannot be withdrawn by the license from the jurisdiction of the State. The vessel may be taxed; the owner may be punished for crime, and the property he shall take away out of the protection of the State she may inspect, to protect and secure the rights of her citizens.

If A swears a licensed coaster has his slave on board, can the license save it from search? And how can the license forbid the State, as a precautionary measure, from searching to prevent the carrying away of property illegally?

This law of March, 1856, does no more than this. It does not touch the license of the vessel. But it does not permit the license to conceal crime, or to warrant the abduction of a slave. It operates on the vessel-the owner-and property, all of which are within and subject to its "internal polity." It does not hinder the voyage of any vessel whose hold does not contain a fugitive from labour or from justice. It inspects, to prevent crime, or injury to its citizen by the loss of his slave.

But it is said, the law is unconstitutional because the inspector is authorized to charge a fee for inspection. That point does not arise in this case. But if it did, The License Cases, 5 How. U. S. R. 581, Ch. J. Taney's opinion, and The Passenger Cases, 7 How. U. S. R. 414, J. Wayne, hold quarantine fees to be legal when charged against the owner of the vessel. And if for quarantine purposes a fee for an inspection may be re

1861. April Term.

Baker
V.

Wise,
Governor.