leave this case, in the confidence that my clients, in common with all the other citizens of this whole country, will ever find(as they ever have in times past) in this court, a full and ample protection for their constitutional rights, against which the waves of fanaticism, as well as of faction, may beat harmlessly. Mr. Burke, for the State: It is not, therefore, matter of surprise, that the tions which I suppose sustain my clients-pogrant should be as extensive as the mischief, sitions occupied and illustrated by the proand should comprehend all foreign commerce, found learning, deep research, and luminous and all commerce between the States." 2 reasoning of Marshall and Story, in their expoStory's Commentaries, sec. 1054. This power, sitions of this branch of the Constitution-I if it be permitted to the States, will be abused. There is no safety for the whole people in placing it anywhere save in those hands where the Constitution has placed it. If, on any pretense, however specious, for the purpose of advancing any cause, however popular or praiseworthy, this function of the general government, so vital to its character, may be usurped by a State Legislature, the barrier between the two powers is broken down, and the purposes of the Union itself defeated. Fanaticism never proposed a measure so wild and absurd, that specious and plausible arguments have not been devised to sustain the measures by which it would affect its object. This case finds that the plaintiffs in error purchased this barrel of gin in Massachusetts. No law of any State, or of the Union, was violated by that act. They were, thus far, in the pursuit and prosecution of a lawful commerce. They brought it coastwise to the landing at Piscataqua Bridge (in New Hampshire), and from thence to their store in Dover. No law is yet broken. And then, in the same barrel, and in the same condition in which it was pur564*] chased *in Massachusetts, and in which they imported it from a sister State, they sold it to Sias. If, as this court has already decided, the same principles apply to commerce between the States that apply to commerce with foreign nations, may it not, without arrogance or presumption, be asked, if human ingenuity can honestly distinguish this case from the one already decided by this court, and so often referred to? Perhaps I owe an apology to this honorable court for urging upon them arguments so familiar and principles so well settled; but believing, as my clients do, that, instead of re-ceiving, as they were entitled to, the protection of the government in their lawful business, they have been branded as criminals, their property taken, and their constitutional rights trampled upon, they have, in the last resort, appealed to this tribunal for that redress and protection against unconstitutional State legislation, to afford which so eminently belongs to this honorable court. They rely with confidence upon the assurance that here, at least, law may be administered, right defended, and justice maintained, uncontaminated by the breath of a local and temporary diseased sentiment, which, in its misguided and abortive attempts at reform, essays to eradicate physical and moral evil from society, and corruption from the human heart, by the wondrous efficiency of legislative enactment. They rely with confidence upon that protection to commerce which this court, on divers occasions, have extended, though, in so doing, they have been under the necessity of pronouncing the legislation of more than one State invalid and unconstitutional. It was to protect commerce that this Union was established. Take away that power from the gen [The argument upon the two first points, respecting the rights of the jury, is omitted.] III. The third and last point raised in this case is the following, viz: That the court by whom this cause was tried instructed the jury that the Act of the Legislature of the State of New Hampshire, approved July 4, 1838, under which the plaintiffs in error were indicted, *was not repugnant [*563 to the Constitution of the United States, nor to any treaty between the United States and foreign nations. The provisions of the Constitution of the United States, to which the law of the State of New Hampshire is alleged to be repugnant, are in the following words: 1. "No State shall, without the consent of Congress, lay any imposts or duties on imports imports or exports, except what may be absolutely necessary for executing its inspection laws.” Art. 1, sec. 10, part of 2d clause. 2. "The Congress shall have power to regulate commerce with foreign nations, among the several States, and with the Indian tribes." Art. 1, sec. 8, clause 3. The act before mentioned is also alleged to be repugnant "to certain public treaties of the United States with Holland, France, and other countries, containing stipulations for the admission of spirits into the United States." By the admission of the plaintiffs in error on the trial, it appears that the "gin" alleged in the indictment to have been sold by them was "American gin." Therefore, taxing the gin, or prohibiting its sale, except upon the terms of the act of the State of New Hampshire, before referred to, did not conflict with the clause of the Constitution of the United States first cited above; because it was not an "import," nor an "export," in the sense of that provision of the Constitution. And for the same reason, taxing, or restricting its sale, did not conflict with the first member of the second clause of the Constitution, above cited, which clothes Congress with the power "to regulate commerce with foreign nations"; nor with the last member of the clause, which empowers Congress to regulate commerce "with the Indian tribes"; nor with the public treaties of the United States with foreign nations. If it conflict with any provision of the Constitution, it is with the second member of the second clause above cited, which gives Congress the power to regulate commerce "among the several States"; and that, it is apprehend-eral government, and the Union cannot longed, is the only question of which this tribunal survive. has cognizance in this case. But, before proHaving thus referred the court to the posi-ceeding to the argument of this question, the But it is apprehended, that, if the "gin" sold by the plaintiffs in error had been imported, themselves not being the importers, they could not sustain their side of the case on the It may also be said, that the "gin" was purprinciples laid down by the court in Brown v. chased in Boston in the same barrel in which it Maryland. Chief Justice Marshall says, the was afterwards transported from Massachusetts article is exempt from the taxing power of a to New Hampshire, and there sold. In other State "while remaining the property of the words, it was sold by the plaintiffs in error "in importer, in his warehouse, in the original form bulk," and therefore comes within the prinor package in which it was imported." "This ciples of the case of Brown v. Maryland, and state of things," he adds, "is changed if he could not be taxed by the laws of New Hamp[the importer] sells them, or otherwise mixes shire, nor its sale in any way regulated or rethem up with the property of the State, by stricted. breaking up the packages and traveling with This position is not believed to be tenable. them as an itinerant peddler." In which case If it were, it would be impossible to prevent "the tax finds the article already incorporated the evasion of the license laws of the State with the mass of property by the act of the im- of New Hampshire. Ardent spirits could not porter." He has himself mixed them up in be purchased in Massachusetts in vessels conthe common mass; and the law may take them as it finds them." supposed ground on which the plaintiffs in error rely will be briefly examined. It is anticipated that the plaintiffs in error will rely mainly on the case of Brown v. The State of Maryland, reported in 12 Wheat. 419; 6 Cond. Rep. 554. It therefore becomes necessary to compare the facts of that case with the present, and to examine the principles laid down by Chief Justice Marshall in giving the opinion of the court. That case was an indictment for selling "one package of foreign dry goods," contrary to an act of the Legislature of the State of Maryland, requiring all "importers" of "foreign goods and commodities," selling the same by wholesale, in bulk, to take out a license, under 566*] *a penalty of one hundred dollars, and the forfeiture of the amount of the license tax, which was fifty dollars, for a neglect to comply with the provisions of the act. The act of the Legislature of Maryland was a revenue law, and a tax imposed upon the importer under the form of a license tax, a revenue tax, and not a police regulation to restrain the sale of an article which was deemed injurious to the health and morals of the people of that State. The persons taxed were the importers of foreign goods, and not the dealers in articles of domestic manufacture or production. The case, therefore, of Brown v. The State of Maryland is different in all its features from the case at bar. It differs from it in two most prominent features; 1. The act of the Legislature of New Hampshire under which the plaintiffs in error were indicted, was a police regulation, and not a revenue law. 2. The commodity sold was not an article of foreign production, nor an "import," but was an article of American manufacture. These two circumstances distinguish the case at bar widely from the case relied on by the plaintiffs in error. The reasoning, therefore, of the court in Brown v. Maryland will not apply to this case. with the mass of property in a State, it is subject to all the laws, restrictions, regulations, and burdens to which other descriptions of the mass of property are subject. In the case at bar, on the supposition that the gin was originally imported, the sale of it by the importer to the plaintiffs in error, and its subsequent transportation into New Hampshire, was such an incorporation of it with the mass of property in the State of New Hampshire as to subject it to the taxing power and police regulations *of the State, in the [*567. same manner and to the same extent to which all property within its jurisdiction was subject. Again, it is admitted by the court, in Brown v. Maryland, that the "police power" remains with the States. The act of the Legislature of New Hampshire, under which the plaintiffs in error were indicted, is a portion of the police system of that State, and, according to Chief Justice Marshall, is not repugnant to the Constitution of the United States. But the plaintiffs in error may rely upon the obiter dictum of the court in Brown v. Maryland, that "we (the court] suppose the principles laid down in this case to apply equally to importations from a sister State." It cannot be supposed, however, that a remark thus casually and loosely expressed can be regarded as authority in the case at bar. If the gin had been foreign gin, and had been purchased by the plaintiffs in error in Massachusetts, and carried to New Hampshire, would it have been such an "importation from a sister State" as to exempt it from the taxing power or police regulations of the State of New Hampshire? And can the fact of its being "American gin," and of having been purchased in Massachusetts (whether manufactured there or not does not appear), give it greater privileges and exemptions in the State of New Hampshire, than if it had been manufactured in New Hampshire, carried to Massachusetts, and there purchased by the plaintiffs in error, and brought back by them to New Hampshire, and sold in the same vessel in which it was originally put up by the manufacturer? But this point will be more fully considered hereafter. From these principles two deductions follow: 1. That the article is exempt from the taxing power of the State while it is in the possession of the importer in bulk, and has not become incorporated with the general mass of property in the State. 2. When it has thus become incorporated taining a less quantity than one barrel-in vessels containing no more than a gallon, a quart, or a pint, and in that form carried into the State of New Hampshire, and sold in spite of the laws regulating the sale of spirituous liquors. It is believed that no such quibbling with, or evasion of, the laws of a State, can shelter itself under the provision of the Constitution which grants to Congress the power "to regulate commerce among the several States." But the case of Brown v. Maryland does not turn on the principle contended for. The taxing power of Maryland in that case seized hold of the commodity while it retained the character of an "import," and before it became in568*] corporated with the general mass *of property in the State. In that state of the commodity, the court held that the taxing power of Maryland could not reach it. And one of the reasons assigned for the decision was, that the importer, by paying the duty upon the article to the United States, had purchased the right of selling it, of which he could not be deprived by the legislation of a State. In the case at bar, the plaintiffs in error had purchased no right to sell their gin by the payment of duties upon it; and, furthermore, it had become incorporated with the general mass of property in the State of New Hampshire. But this power extends only to the transportation and introduction *of articles of com- [*569 merce from one State into the limits of another. When a commodity is introduced within the jurisdiction of another State, it becomes subject to the laws of that State. In other words, each State has the power to regulate the internal traffic within its limits. This position is sustained in Gibbons v. Ogden, 9 Wheat. 1; Brown v. The State of Maryland, 12 Wheat. 419; City of New York v. Miln, 11 Peters, 102. The power to regulate commerce among the States is supervisory. It was designed by the framers of the Constitution to secure to the several States of the Union a free interchange of their products, and their transit through the territories of each, unencumbered with any burdens, duties, or taxes, except such as grow out of the inspection, health, and police reg But the true and only question involved in the ❘ ulations of the respective States. In other case, and which is presented for the decision of this tribunal, is now approached. Is the Act of the Legislature of New Hampshire regulating the sale of spirituous liquors, approved July 4, 1838, repugnant to that provision of the Constitution of the United States which clothes Congress with the power "to regulate commerce among the several States?" If it should be regarded as a law whose object was revenue alone, it is believed then not to be repugnant to the provision of the Constitution just cited. But, before proceeding further, it becomes necessary to inquire into the meaning of this provision of the Constitution, and the extent of the power which it delegates to Congress. And, in order to comprehend it clearly, it will be necessary to recur to the circumstances in the history of the country, prior to the adoption of the present Constitution, which led to the investment of this power in Congress. Previous to that time, it is well known that the States comprising the Union had separate and independent systems of revenue, commerce, and navigation. One of their sources of revenue was the levying of duties on foreign imports. They had the same power over the products of other States, when mported into their jurisdictions. Each State legislated for itself, in relation to duties, tonnage, and navigation. Of course the exercise of this right to regulate commerce, which each State then possessed, led to numerous conflicts with the legislation and the interests of other States, which did not fail to engender deep and malignant animosities, as the history of the times abundantly proves. Trade was restricted between the States, and the interchange of commodities, so essential to the interests and advancement of all, was greatly embarrassed. Hence was there an imperative necessity to words, it was designed to secure free trade among the States. And in accordance with this view of the power of Congress to regulate commerce between the States is that provision in the Constitution which prohibits to the States the power "to law any duty on tonnage;" and also that provision of the Constitution which prohibits any "regulation of commerce or revenue, which shall give preference to the 'ports of one State over those of another." Thus it is the manifest intention of the Constitution that the power of Congress over commerce between the States shall be supervisory merely, and exerted only to secure perfect freedom of trade and intercourse between the States. See the Federalist, No. 42, p. 182, Wash. edition, 1831. With this view, Congress has passed navigation laws, which secure to the vessels of one State the same privileges in the ports of another State which the vessels of the latter enjoy in its own ports. But does the act of the Legislature of New Hampshire interfere with this power of Congress "to regulate commerce among the States," as above defined? Does it prevent the unrestricted introduction of articles from other States into the State of New Hampshire, or their free transit through its territories? It may be safely affirmed that it does not. It is stated in the bill of exceptions, that the gin sold by the plaintiffs in error was brought from Boston, the place of its purchase, "coastwise to the landing at Piscataqua Bridge, and from thence to the defendants' store in Dover." But can the mode by which the article was transported from Massachusetts, and introduced into the territory of New Hampshire, secure to it any constitutional protection? It will not be pretended. The gin would have been entitled to the same privileges and immunities if it had been transported by railroad, or by one of the wrest this dangerous power from the individ- numerous baggage wagons which run to and ual States, and vest it in the general government, from Massachusetts and New Hampshire. It in order to secure a uniformity of its exercise. cannot be a privileged article, because it was In Gibbons v. Ogden, 9 Wheat. 1, this power carried "coastwise" into the State of New is assumed by the court to be exclusively vested Hampshire. But it may be confidently affirmed in Congress. The extent, therefore, of the that Congress, under the general power "to power embraces the whole of it, subject, how-regulate *commerce among the several [*570 ever, to the inspection laws, health laws, police States," cannot secure to the productions and regulations, etc., etc., which the court, in manufactures of one State, imported into anthe case last cited, admit belong to the great other State for sale and consumption, greater mass of general legislation reserved to the privileges and exemptions than the productions States. and manufactures of the latter would enjoy 285 within its own jurisdiction. Congress cannot | New Hampshire, that the Act of July 4, 1838; give to the productions and manufactures of under which the plaintiffs in error were indictMassachusetts, which are carried into New ed, is a police regulation, which it was within Hampshire for sale and consumption, greater the competency of the Legislature of that State privileges and exemptions than the productions to enact, and is therefore not repugnant to the and manufactures of the latter State would possess within the limits of its own territories. The "barrel of gin" purchased by the plaintiffs in error in Massachusetts, and carried to New Hampshire for sale and consumption, Constitution of the United States. In the case of Gibbons v. Ogden, 9 Wheat. 203, the court say, that "inspection laws, quarantine laws, health laws, of every description, as well as laws for regulating the internal com ment." could not claim greater privileges and exemp- merce of a State, and those which respect tions than a "barrel of gin" manufactured in turnpike roads, ferries, etc., are component the State of New Hampshire. The former parts of that immense mass of legislation which must be subject to the same laws and regula- embraces everything within the territory of a tions to which the latter would be subject. State not surrendered to the general governAnd it will hardly be pretended that the Legislature of New Hampshire could not pass laws regulating the sale, within its own limits, of spirituous liquors, or of any other article manufactured within its own jurisdiction. And if Congress should attempt to interfere in such a case it would be a most gross and palpable invasion of the reserved rights and the internal police of New Hampshire. But it may be contended that the license law of the State of New Hampshire conflicts with The law of the Legislature of New Hampshire under consideration is a police regulation. Its design and object are to preserve the public morals and health of the State, and it is clearly within the recognized constitutional authority of the Legislature of that State to enact. This power, it is admitted by the court, in the cases of Brown v. Maryland, Gibbons v. Ogden, and The City of New York v. Miln, all before cited, the States may exercise, even if it the provision of the Constitution which gives interfere with foreign commerce. The States Congress power to regulate commerce among may pass laws regulating the sale of the States, because it is general and sweeping gunpowder, which is clearly a police regin its provisions, and prohibits the sale of wines ulation, and necessary for the safety of the and spirituous liquors in any quantity. Such people, particularly in large cities. They a position, if assumed, cannot be maintained by any sound argument. It would make the constitutional question questi involved in this case depend upon the quantity of liquor sold, and not the thing itself. And where should be the limit of the law as to the quantity the sale of may, also, by their health laws, intercept and prohibit the sale of an infected article, notwithstanding the duty may have been paid on it, and it may yet remain in the hands of the importer, in bulk, in the character of an import; a fortiori may they intercept and prohibit the which it would be constitutional to prohibit? | sale of an infected article, produced in another Would it be confined to a pint, a quart, or a gallon? And could the grave constitutional question raised in this case depend upon an absurdity so palpable, not to say ridiculous? But the subjection of the productions of one State, when introduced for the purpose of sale and consumption within the territories of another to the internal laws and regulations of the latter State, finds an analogy in the case of the citizens of one State going into the jurisdiction of another. The Constitution provides, that "the citizens of each State shall be entitled to all the privileges and immunities of the citizens of the several States." Citizens of one State, going into the jurisdiction of another State, can claim no exemption from its laws under this clause. If they enter the territory of another State merely to pass through it, the power of the law surrounds them to protect them from violence and to restrain them from crime. If they violate the laws of the State into whose territory they 571*] pass, they are subject, *like all the citizens of that State, to all the penalties which the laws impose. If they remain in the State, they become subject to the taxing power, and all the burdens and restraints which its laws impose upon its own citizens. Can an article of commerce, produced in one State and car State, and transported within the jurisdiction of the former for sale. For the same reason may the States, by their police regulations, prohibit the sale of obscene books, imported from a foreign country, notwithstanding the duty may have been paid on them, and they may remain in the original package. So, also, may they prohibit the sale of an obscene book written in this country, on which the copyright has been secured from the government of the United States, notwithstanding the fee required in such cases has been paid. Such cases, it is believed, would be analogous in principle to the power to regulate or prohibit the sale of spirituous liquors. On this point the following cases are relied on: Lunt's case, 6 Greenleaf's Maine Rep. 412; Beal, Plaintiff in Error v. The State of Indiana, *4 Blackford, 107; [*572 King v. Cooper, Plaintiff in Error, 2 Scammon, 305. And in confirmation of the authorities cited on this point, it may be observed that the license system was adopted in England at a very early period of her history, and has ever since composed a part of the police system of that kingdom. See Crabbe's History of English Law, London edit. p. 477; see, also, the different enactments of the British Parliament, in 7 Evans' Statutes, pp. 1-32, title Ale ried into another, for sale and consumption, Houses. Many of the English statutes relate claim greater privileges and exemptions in the to the sale of imported as well as domestic liqlatter State than citizens of the same State | uors. They, of course, conflict with the impassing into another can claim? Such a position will hardly be ventured upon. But, finally, it is contended for the State of port as well as excise systems of that governwell ment; and yet, it is believed, they never have been called in question. commerce with foreign nations and among the several States. License regulations were also adopted by the | ulate Similar legislation, it is believed, has been adopted in nearly every State in the Union. But if the law of the Legislature of New Hampshire, now under consideration, shall not be regarded as a police regulation, it is clearly a law regulating the internal commerce of the State, and therefore constitutional, according to the doctrine laid down in Gibbons v. Ogden, before cited. It may also claim analogy with the laws relating to hawkers and peddlers, which, it is believed, have been enacted in believed. form in every State in the Union. some And, in conclusion, the remark will be ventured upon (although, perhaps, not appropriate in a mere argument), that the people of the State of New Hampshire, almost without distinction of age, sex, or condition, feel a deep and absorbing interest in the final issue of this question. Their sentiments concur with the sense of nearly the whole civilized world, which now concedes that the traffic in intoxicating liquors is a crime against society. It is disapproved by man, and stands condemned by the great moral Judge of the universe, whose purity cannot countenance such manifest and admitted wrong. It is the foul parent of immorality and crime, and the prolific source of unspeakable misery and sorrow to innumerable individuals and families. And is it to be contended that it is repugnant to the Constitution of the United States to restrain and prohibit such inhuman traffic?-to extirpate a moral crime, which grows blacker and more hideous the longer it is contemplated, and the more its horrible effects become visible? And deeply anxious are the people of New Hampshire that this vicious trade shall receive no countenance from the judgment of the august and enlightened tribunal to whose arbitrament this cause is now most respectfully submitted. 573*] *Mr. Chief Justice Taney: In the cases of Thurlow v. The State of Massachusetts, of Fletcher v. The State of Rhode Island, and of Peirce et al. v. The State of New Hampshire, the judgments of the respective State courts are severally affirmed. The justices of this court do not, however, altogether agree in the principles upon which these cases are decided, and I therefore proceed to state the grounds upon which I concur in affirming the judgments. The first two of these cases depend precisely upon the same principles; and although the case against the State of New Hampshire differs in some respects from the others, yet there are important principles common to all of them, and on that account it is more convenient to consider them together. Each of the cases has arisen upon State laws, passed for the purpose of discouraging the use of ardent spirits within their respective territo The cases have been separately and fully and ably argued, and the questions which they involve are undoubtedly of the highest importance. But the construction of this clause in the Constitution has been so fully discussed at the bar, and in the opinions delivered by the court in former cases, that scarcely anything can be suggested at this day calculated to throw much additional light upon the subject, or any argument offered which has not heretofore been considered, and commented on, and which may not be found in the reports of the decisions of this court. It is not my purpose to enter into a particular examination of the various passages in different opinions of the court, or of some of its members, in former cases, which have been referred to by counsel, and relied upon as supporting the construction of the Constitution for which they are respectively contending. And I am the less inclined to do so because I think these controversies often arise from looking to detached passages in the opinions, where general expressions are sometimes used, which, taken by themselves, are susceptible of a construction that the court never intended should be given to them, and which in some instances would render different portions of the opinion inconsistent with each other. It is only by looking to the case under consideration at the time, and taking the whole opinion together, in all its bearings, that we can correctly understand the judgment of the court. The Constitution of the United States declares that that Constitution, and the laws of the United States which shall be made in pursuance *thereof, and all treaties made, [*574 or which shall be made, under the authority of the United States, shall be the supreme law of the land. It follows that a law of Congress regulating commerce with foreign nations, or among the several States, is the supreme law; and if the law of a State is in conflict with it, the law of Congress must prevail, and the State law cease to operate so far as it is repugnant to the law of the United States. It is equally clear, that the power of Congress over this subject does not extend further than the regulation of commerce with foreign nations and among the several States; and that beyond these limits the States have never surrendered their power over trade and commerce, and may still exercise it, free from any controlling power on the part of the general government. Every State, therefore, may regulate its own internal traffic, according to its own judgment and upon its own views of the interest and well-being of its citizens. gene I am not aware that these principles have ever been questioned. The difficulty has always arisen on their application; and that difficulty is now presented in the Rhode Island and Massachusetts cases, where the question is how far a State may regulate or prohibit the ries, by prohibiting their sale in small quanti- sale of ardent spirits, the importation of which ties, and without licenses previously obtained from the State authorities. And the validity of each of them has been drawn in question, upon the ground that it is repugnant to that clause of the Constitution of the United States which confers upon Congress the power to reg from foreign countries has been authorized by Congress. Is such a law a regulation of foreign commerce, or of the internal traffic of the State? It is unquestionably no easy task to mark by a certain and definite line the division between |