present case is not of that character. Nor | prohibitory power, as to persons or property of would it be, if prohibiting sales within the ac- certain kinds, from coming into the limits of knowledged limits of a State, in cases affecting public morals or public health. Nor is there 629*] in this case *any complaint, either by a foreign merchant or foreign nation, that treaties are broken; or by any of our own States or by Congress, that its acts or the Constitution have been violated. There are additional illustrations of such powers, existing on general principles in all independent States, given in Puffendorf, B. 8, ch. 5, sec. 30, as well as in various other writers on national law. And those exercised under what he terms "sovereign or transcendental propriety" (sec. 7th), and those which we class under the right of "eminent domain," are recognized in the fifth amendment to the Constitution itself, and go far beyond this. Much more is there an authority to forbid sales, where an authority exists both to seize and destroy the article itself, as is often the case at quarantine. So the power to forbid the sale of things is surely as extensive, and rests on as broad principles of public security and sound morals, as that to exclude persons. And yet who does not know that slaves have been prohibited admittance by many of our States, whether coming from their neighbors or abroad? And which the State. But it must exist somewhere; and it seems to me rather a police power, belonging to the States, and to be exercised in the manner best suited to the tastes and institutions of each, than one anywhere granted or proper to the peculiar duties of the general government. Or, if vested in the latter at all, it is but concurrent. Hence, when the latter prohibited the import of obscene prints in the tariff of 1842, it was a novelty, and was considered by some more properly to be left to the States, as it opened the door to a prohibition, or to prohibitory duties, to many articles by the general government which some States might desire, but others not wish to come in as competitors to their own manufactures. But, as previously shown, to prohibit sales is not the same power, nominally or in substance, as to prohibit imports. It is possible, that, under our system of double governments over one and the same people, the States cannot prohibit the mere arrival of vessels and cargoes which they may deem dangerous in character to their public peace, or public morals, or general health. might, perhaps, trench on foreign commerce. Nor can they tax them as imports. This might trench on that part of the Constitution which This of them cannot forbid their soil from being pol- | forbids States to lay duties on imports. But luted by incendiaries and felons from any quar ter. Nor is there in my view any power conferred on the general government which has a right to control this matter of internal commerce or after articles have come within the territorial limits of States, whether on land or water, the destruction itself of what contains disease and death, and the longer continuance of such articles within their limits, or the terms and con police, while it is fairly exercised so as to ac-ditions of their continuance, when conflicting complish a legitimate object, and by means adapted legally and suitable to such end alone. New Hampshire has, for many years, made it penal to bring into her limits paupers even from other States; and this is believed to be a power exercised widely in Europe among independent nations, as well as in this country among the States. New Hampshire Revised Statutes, Paupers, 140. It is the undoubted and reserved power of every State here, as a political body, to decide, in- | dependent of any provisions made by Congress, though subject not to conflict with any of them when rightful, who shall compose its population, who become its residents, who its citizens, who enjoy the privileges of its laws, and be entitled to their protection and favor, and what kind of property and business it will tolerate and protect. And no one government, or its agents or navigators, possess any right to make another State, against its consent, a penitentiary, or hospital, or poor-house farm for its wretched outcasts, or a receptacle for its with their legitimate police, or with their power over internal commerce, or with their right of taxation over all persons and property under their protection and jurisdiction, seems one of the first principles of State sovereignty, and indispensable to public safety. Such extraordinary powers, I concede, are to be exercised with caution, and only when necessary or clearly justifiable in emergencies, on sound and constitutional principles; and, if used too often, or indiscreetly, would open a door to much abuse. But the powers seem clearly to exist in the States and ought to remain there; and though, in this instance, they are not used to this extent, but still, as respectable minorities within these three States believe not to be useful, and as some other States do not think deserving imitation, yet they are used as the competent and constitutional power within each has judged to be proper for its own welfare, and as does not appear to be repugnant to any part of the Constitution, or a treaty, or an act of Congress. They must, therefore, not poisons to health, and instruments of gambling be interfered with by this court, and the more and debauchery. Indeed, this court has de- especially as one reason why these powers liberately said: "We entertain no doubt what-have been left with the States is, that the suband above all others. soever, that the States, in virtue of their general police power, possess full jurisdiction to arrest and restrain runaway slaves, and remove them from their borders, and otherwise to secure themselves against their depredations and evil example, as they certainly may do in cases of idlers, vagabonds, and paupers." Prigg v. Pennsylvania, 16 Peters, 625. 630*] *There may be some doubt whether the general government or each State possesses the ject matter of them is better understood by each State than by the Union; and the policy and opinions and usages of one *State [*631 in relation to some of them may be very unlike those of others, and therefore require a different system of legislation. Where can such a power also be safer lodged than with those public bodies, or States, who are themselves to be the greatest sufferers in interest and character by an improper use of it? If it should happen at any time to be exercised injudicious- | erations, on any ground of prerogative or suly, that circumstance would furnish a ground premacy. The exigencies of the social comfor an appeal rather to the intelligence and pact require that such laws be executed before prudence of the State, in respect to its modification or repeal, than an authority for this court, by a writ of error, to interfere with the well considered decision of a State court, and reverse it, and pronounce a State law null and void, merely on that account. It is for this reason that quarantine laws, which protect the public health, compel mere commercial regulations to submit to their control. They restrain the liberty of the passengers, they operate on the ship which is the in Many State laws are such, that their expedi-strument of commerce, and its officers and ency and justice may be doubted widely, and crew, the agents of navigation. They seize by this tribunal; but this confers no authority the infected cargo, and cast it overboard. on us to nullify them; nor is any such authori- The soldier and the sailor, though in the service ty, for such a cause, conferred on Congress by any part of the Constitution. The States stand properly on their reserved rights, within their own powers and sovereignty, to judge of the expediency and wisdom of their own laws; and while they take care not to violate clearly any portion of the Constitution or statutes of the general government, our duty to that Constitution and laws, and our respect for State rights, must require us not to interfere. Mr. Justice Grier: I concur with my brethern in affirming the judgment in this and the preceding cases on the of the government, are arrested, imprisoned, and punished for their offenses against society. Paupers and convicts are refused admission into the country. All these things are done, not from any power which the States assume to regulate commerce or to interfere with the regulations of Congress, but because police laws for the preservation of health, prevention of crime, and protection of the public welfare, must of necessity have full and free operation, according to the exigency which requires their interference. It is not necessary for the sake of justifying the State Legislation now under consideration to array the appalling statistics of misery, pau same subject, but for reasons differing some-perism, and crime, which have their origin in what from those expressed by the other members of the court; and as I concurred mainly with the opinion delivered by Mr. Justice McLean in the case of Thurlow v. Massachusetts, I had concluded to be silent, and therefore am the use or abuse of ardent spirits. The police power, which is exclusively in the States, is alone competent to the correction of these great evils, and all measures of restraint or prohibition necessary to effect the purpose are within not prepared to express my views at length. I the scope of that authority. There is no con take this occasion, however, to remark, that the true question presented by these cases, and one which I am not disposed to evade, is, whether the States have a right to prohibit the sale and consumption of an article of commerce which they believe to be pernicious in its effects, and the cause of disease, pauperism, and crime. I do not consider the question of the exclusiveness of the power of Congress to regulate commerce as necessarily connected with the decision of this point. It has been frequently decided by this court, "that the powers which relate to merely m municipal regulations, or what may more properly be called internal police, are not surrendered by the States, or restrained by the Constitution of the United States; and that consequently, in relation to these, the authority of a State is complete, unqualified, and conclusive." Without attempting to define what are the peculiar subjects or limits of this power, it may safely be affirmed, that every law for the restraint and punishment of crime, for the preservation of the public peace, health, and morals, must come within this category. flict of power, or of legislation, as between the States and the United States; each is acting within its sphere, and for the public good, and if a loss of revenue should accrue to the United States from a diminished consumption of ardent spirits, she will be the gainer a thousandfold in the health, wealth, and happiness of the people. Order. 632*] *As subjects of legislation, they are Joel Fletcher v. The State of Rhode Island and from their very nature of primary importance; they lie at the foundation of social existence; they are for the protection of life and liberty, and necessarily compel all laws on subjects of secondary importance, which relate only to property, convenience, or luxury, to recede, when they come in conflict or collision, "salus populi suprema lex." If the right to control these subjects be "complete, unqualified, and exclusive" in the State Legislatures, no regulations of secondary importance can supersede or restrain their op Providence Plantations. This cause came on to be heard on the transcript of the record from the Supreme Court of the State of Rhode Island and Providence Plantations, holden at Providence, within and for the County of Providence, and was argued by counsel; on consideration whereof, it is now here ordered and adjudged by this court, that the judgment of the said Supreme Court in this cause be, and the same is hereby affirmed with costs. Order Judicature in and for the First Judicial District of the State of New Hampshire, and was Andrew Peirce, Junior, and Thomas W. Peirce argued by counsel; on consideration whereof, v. The State of New Hampshire. This cause came on to be heard on the transcript of the record from the Superior Court of 12 L. ed. it is now here ordered and adjudged by this court, that the judgment of the said Superior Court of Judicature in this cause be, and the same is hereby affirmed, with costs, 315 1 The Extra Annotation here following is arranged in the order of the cases in the original reporter's volume which precede it. At the upper outside corner of the page is given the volume and pages of the cases to which the Annotation refers. After the official reporter's volume and page in the heading of each case is given book and page of the present edition, the abbreviation L being used for Lawyers' Edition, or Law. Ed. for brevity, as it is throughout in the duplicate citations of cases from the Supreme Court. ABBREVIATIONS. F. C. appended to a citation from the regular reports of the U. S. Circuit and District Courts refers to the series of reprints called the Federal Cases and gives, as its publishers do and recommend, the number of the case in that series. Fed. Cas. is used when the case is contained in the series of Federal Cases but is not reported in the regular series of U. S. Circuit and District Court Reports, and the citation of such cases is to the volume and page of Fed. Cas., not to the number of the case. Fed. or Fed. Rep. refers to the well known series Federal Reporter, containing reports of the Circuit and District Court decisions since 1880. L. R. A. will be readily recognized as the abbreviation for the Lawyers' Reports Annotated, and particular attention should be given to these citations, as in a large proportion of cases the citing case will be found accompanied by a note on its principal point absolutely exhaustive of the authorities thereon. Am. Dec., Am. Rep. and Am. St. Rep. will be readily recognized as the abbreviations for the well known trinity of selected case reports, The American Decisions, American Reports and American State Reports. Pennsylvania State Reports (Pa. St.) The New Jersey Law Reports (N. J. L.) and Equity Reports (N. J. Eq.) are distinguished by the number of the series, not by the name of the reporter, while the North and South Carolina Reports, Law and Equity, are cited by the name of the reporter where the reports are so titled and it has been the universal custom. Duplicate citations are given to the National Reporter System where cases are therein contained, and to the Reporter System alone of cases not, at the date of the preparation of the annotation, officially reported. The usual abbreviations are used, as follows: We think that in all other respects the abbreviations used are clear and familiar to all who are accustomed to the use of legal reports and text books. U. S. Notes 5 Howard, 12 L. ed. 316-64 p. EDITOR. |