application of Gibbons v. Ogden, and Brown v. Maryland, to The conclusion arrived at was, that they

3

the present case. had no applicability. In commenting on the case of Brown v. Maryland, the learned justice said, speaking of the principles therein laid down by Chief Justice Marshall: 2 "But how can this apply to persons? They are not the subject of commerce; and not being imported goods, cannot fall within a train of reasoning founded upon a construction of a power given to Congress to regulate commerce, and the prohibition of the states from imposing duties on imports." The argument of the court is finally summed up: "But we do not place our opinion on this ground. We choose rather to plant ourselves. on what we consider impregnable positions. They are these: That a state has the same undeniable, 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 safety, happiness, and prosperity of its people, and to provide for its general welfare, by any and every act of legislation which it may deem to be conducive to those 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 these powers which relate to merely municipal legislation, or what may, perhaps, more properly be called internal police, are not thus surrendered or restrained; and that, consequently, in relation to these the authority of a state is complete, unqualified, and exclusive."

The New York statute was declared valid. From this decision Mr. Justice Story very earnestly and emphatically dissented. With his opinion he stated that Chief Justice Marshall had agreed.

§ 350. In my opinion the decision of the court upon the facts of this case was correct, although many of the dicta in the opinion of Mr. Justice Barbour cannot be supported. The law of New York seems clearly to fall within that mass of

1 11 Peters' R. 133-136.

2 Ibid. 136.

3 Ibid 138.

supervisory measures, which are collectively termed regulations of police. The case is quite plainly distinguishable from Brown v. Maryland. In the latter case, the state legislation acted upon the objects of commerce, and placed a new restriction upon the incorporation of imported goods into the general property of the state: the New York statute did not interfere with the transit and landing of passengers; it only required information as to those who should land, and thus become added to the number of inhabitants. The dictum of Mr. Justice Barbour, that persons cannot be the objects of commerce, was not necessary to the decision of the case, was plainly incorrect, and, as we shall see, was directly overruled by a subsequent judgment of the same court.

§ 351. The License Cases: Facts and Questions at issue. Following in order of time (1847) are the license cases.1 There were three cases: Thurlow v. Massachusetts, Fletcher v. Rhode Island, and Peirce v. New Hampshire. In each, a person was indicted under a state statute forbidding the sale of spirituous liquors without a license. In Massachusetts the statute forbade the sale of spirituous liquors in less quantities. than twenty-eight gallons, unless the seller be licensed. In Rhode Island the statute was similar, and the person indicted had sold French brandy purchased directly from the original importer. In New Hampshire the statute was similar, and the person indicted had sold a barrel of American gin, purchased by himself in Boston, and carried coastwise to a port in New Hampshire, where it was sold in the original package. The objection urged against each of these statutes was that it contravened the Constitution and the acts of Congress passed thereunder.

§ 352. Decision of the Court. In these cases a strong attempt was made to commit the court to the theory that jurisdiction over commerce is, in all cases, concurrent in the nation and in the states. It is absolutely impossible, however, to say what the court decided. Although all the judges came to the same conclusion, that the state laws were valid, hardly two, much less a majority, agreed in the reasons for their judgment, and the rules of law applicable to the cases.

15 Howard's R. 504.

I have no doubt that all these state laws were valid; they were plainly police regulations, established to preserve the health and morals of the citizens. Rested upon this ground, the license cases would appear to be simple enough. But this easy solution did not satisfy some of the judges. The result was, that Chief Justice Taney, Mr. Justice Daniel, Mr. Justice Woodbury, and Mr. Justice Grier, each delivered one opinion applicable to all the cases; Mr. Justice McLean three opinions, one in each case; Mr. Justice Catron two opinions, one in the Massachusetts and Rhode Island, and one in the New Hampshire case. I will endeavor to state, in a very brief way, positions of each of the members of the court.

the

§ 353. Opinion of Taney, C. J.-The Chief Justice speaks first of the Massachusetts and Rhode Island cases. In each the liquor sold was imported, but in neither of them was the defendant the importer. The Chief Justice adopted the doctrines announced in Brown v. Maryland; approved of that case, and held that the liquor having passed beyond the hands of the importer, had become a part of the general property of the state, and was subject alone to the power of the state to regulate purely internal commerce, and to pass police laws. The New Hampshire case presented a different state of facts. The barrel of gin was bought by the defendant in Boston, carried by sea to New Hampshire, and there sold by him in bulk. The article had, therefore, formed a part of the interstate commerce. Chief Justice Taney remarks that the facts here are quite different from those in Brown v. Maryland, the state statute in the latter case applying to all foreign goods, in respect to the importation of which Congress had fully legislated. But Congress had not legislated in regard to goods carried from one state to another; the navigation laws did not apply to the goods which may be transported, but only to the vessels which transport; the foreign importation statutes cover the introduction of articles from abroad, but no corresponding statute applies to traffic among the states. In the opinion of the Chief Justice the question was therefore directly presented, whether the mere grant to Congress of power to regulate commerce was exclusive and prohibitory

upon the states, or whether it requires a statute of the national legislature, passed in pursuance of such grant, to oust the states of jurisdiction. He adopted the latter of these views, and therefore held the law of New Hampshire valid. The case which he principally relied upon, as confirmatory of his doctrines, was Wilson v. Blackbird Creek Company.

This judgment of Chief Justice Taney, in its general scope and conclusion, cannot be successfully criticized; it seems to be in harmony with prior and subsequent decisions, and to fall completely within the propositions stated in § 338.

§ 354. Opinion of McLean, J.-- Mr. Justice McLean, in his opinion upon the Massachusetts case, first takes the same position as the Chief Justice, holding that, as the defendant was not the importer, he was not protected by Brown v. Maryland. His principal ground, however, was, that the license law of the state was simply and strictly a police regulation. As I have already said, this appears to be the rational doctrine by which this and all similar controversies may be easily determined. The opinion in the Rhode Island case was identical with that given upon the Massachusetts statute.

In the New Hampshire case, the learned judge, while not accepting all the reasoning and conclusions of the Chief Justice, held that a person buying goods in one state, and carrying them to another, there to sell, is not, in any proper sense, an importer; and that it is not to be understood that such goods are free from state laws, even while in the hands of the very purchaser who brought them within the territory.

§ 355. Opinion of Catron, J.—Mr. Justice Catron, in the New Hampshire case, rejects the doctrine that the statute was within the police powers of a state; holding that if states may thus put restrictions upon the introduction of goods under such an assumed authority, they might absolutely prohibit the importation of those articles which they should pronounce to be deleterious, and thus the power of Congress to regulate commerce would be defeated. He puts his decision on the ground taken by Chief Justice Taney, namely, that the power in Congress is not exclusive until that body has acted; and not having acted, the door was open for the state legislature to pass

such regulations of commerce as it saw fit. In the other cases, Mr. Justice Catron agreed with the Chief Justice, that the goods having passed beyond the importer, were under the exclusive control of the state government.

§ 356. Opinion of Daniel, J.- Mr. Justice Daniel was the impracticable member of the court; a true, consistent advocate of state sovereignty of the strict Calhoun school. He was entirely dissatisfied with the reasoning of all the other judges. He held that the court had always been wrong; that Congress had no exclusive power under any circumstances; that regulating commerce does not include the power to make rules respecting imported goods, but should be confined to the means of transportation, the registry of ships, etc.; that, instead of these state statutes being void, most of the laws of Congress were unconstitutional.

Mr. Justice Nelson agreed with Chief Justice Taney and Catron, J. Mr. Justice Woodbury more nearly agreed with Daniel, J. He seems to have argued that the judgment in Brown v. Maryland was wrong; that states have the power to pass laws which place a restriction upon the introduction even of foreign goods.

§ 357. In reviewing these extraordinary license cases, it is plain that the court did not overrule the former decisions of Gibbons v. Ogden, and Brown v. Maryland. On the other hand, it would appear that five of the justices, Taney, Catron, Daniel, Nelson, and Woodbury, concurred in the proposition that it requires, at least, a statute of Congress, passed in pur- · suance of the general grant of power in the Constitution, to inhibit the state legislatures from enacting laws which regulate commerce; while two of the justices, McLean and Grier, did not adopt this view; two, Daniel and Woodbury, pushed their conclusions much further; and two, Wayne and McKinley, were absent, or took no part in the decision. Whatever rule, however, was established by this judgment, was entirely unsettled by the next cases which came before the same high tribunal for adjudication.

§ 358. The Passenger Cases: Facts and Questions at issue. These are known as the Passenger Cases,1 (1849.) There

17 Howard's R. 283.