tween the United States and foreign nations, 13. The counsel for the Commonwealth of and among the several States. "These words Massachusetts admits that the law complained [regulate commerce] comprehend every species of becomes prohibitory against this descripof commercial intercourse between the United States and foreign nations. No sort of trade can be carried on between this country and another to which this power does not extend." Gibbons v. Ogden, 9 Wheat. 189, 193, 194. 6. The exercise of the power of a State to regulate its internal commerce must not conflict with, and cannot control, the power of Congress to regulate foreign commerce, and commerce among the States. The internal commerce on which a State can act, independ515*] ent of a law of Congress affecting the same, must be trade, or dealing in articles not connected with the operation of a valid law of the United States. It must be "completely internal," local, and not connected with the United States government, in the exercise of its power to regulate commerce, and to lay and collect duties and imposts. 7. "The power [of the United States] to regulate commerce, must not terminate at the boundaries of the State, but must enter its interior. The power is co-extensive with the subject on which it acts." Brown v. Maryland, 12 Wheat. 446. 8. If a State, under the power of regulating her internal commerce, can exclusively regulate or control (to the extent of prohibition) commerce in imported merchandise, up to her boundaries, or the instant it shall pass, in bulk, from the hands of the importer, she can thereby exclude foreign commerce, and deny her markets to foreign nations. 9. If a State has no such power of prohibition, she cannot empower her officers or agents to do what she cannot do herself, viz., prohibit internal commerce in foreign merchandise. Suppose the Legislature of Massachusetts, instead of conferring this power of prohibition upon the county commissioners, to be exercised in their uncontrolled discretion, should retain it, to be exercised by herself; it would be unlaw ful legislation, and collision of a State law with a law of the United States. tion of imported merchandise, whenever the public sentiment of a majority electing the county commissioners requires prohibition. If this be valid State legislation, then the power of Congress to regulate commerce in [*516 imported merchandise is subordinate to the disposition of the Legislature of a State to exclude it from their markets. 14. The laws of Congress make no distinction between commerce in imported wines and spirits and other foreign merchandise. A recognition of the power of a State to exclude the first from its markets, whenever public sentiment requires it, must embrace the like power in respect to all other descriptions of imports, whenever the public sentiment in a State demands its exercise. 15. There is no pre-eminence given to that class of State legislation denominated police laws over other laws, whenever they come in collision with the lawful exercise of a power of Congress; and in such case the latter, by the terms of the Constitution, shall be the supreme law of the land. 16. The law of Massachusetts in question is not a health law against contagion or infection in the article imported; it aims to keep it out of the hands of the consumer, on the ground of its abuse in excess of use. Health laws may exclude all such portions or cargoes of an article of commerce as are infectious; but they cannot exclude a whole class of imported merchandise, on the ground that infected portions or cargoes of it have been, or may be, imported. 17. Infected articles of commerce may rightfully be excluded from passing the boundary of a State, and reaching the hands of the importer, as well as the consumer. But a State cannot, under Brown v. Maryland, 12 Wheat. 419, exclude imported wines and spirits, or any sound article of commerce, from reaching the importer; and this is an obvious distinction between health laws and a law of prohibition to cut off the transfer of a sound article from the importer to the consumer. 10. The laws of Massachusetts, of which the plaintiff in error complains as unconstitutional, are, in respect to commerce and trade in this 18. The point where regulation ceases and description of imported merchandise, a law of prohibition begins is the point of collision, and prohibition, because they assume to provide of unconstitutional operation, of a State law for licenses to persons to sell, and then empow- affecting foreign commerce. In this respect a er the agents they create to refuse all such li-State law becomes a law of prohibition when it censes, without cause; and it punishes all sell ers in quantities less than twenty-eight gallons, without such license; and, in fact, no such license can be obtained. Both the intent and the operation of these laws are, therefore, prohibitory. 11. If it be said that it depends upon the administration of this law, whether it be constitutional or not, and therefore a law may be constitutional though its operation may be un constitutional, the answer is, that a State can not so frame a law as that under one sort of administration it is constitutional, and under another unconstitutional, and both operations be lawful, and thus the law be valid. 12. If a law of a State provides for and contemplaces collision with a law of the United States, the former is invalid, and must yield whenever the collision arises. punishes all who sell without license, and confers the whole power of licensing on agents, with express authority to withhold all licenses. 19. In any and all cases, the power to deny sale includes the power to prohibit importation; and the question of power is the same, whether exercised directly by the Legislature, or indirectly by its agents thereto authorized. 20. The operation of the law of Massachusetts on foreign wines and spirits deprives im. ported articles of their vendible quality. This such law cannot rightfully do, for the whole course of legislation by Congress shows that the right to sell is connected with the payment of duties, and the right to sell must extend beyond the importer, or it is an inoperative right. 21. The argument on the other side is, that if the power to regulate commerce can [*517 follow the imported article, with its vendible quality attached, into a State, it can compel, class, victuallers. 22. The counsel on the other side further argues, that the State has a right to deny this commerce, whenever her citizens do not wish to deal in it. But if they do not desire to purchase, there would be no need of a prohibition of sale. The law of prohibition proceeds on the ground, that if commerce in this article were not denied, there would be such commerce; and therefore it directly interferes with the law of Congress regulating that com merce. 23. A State may pass all such laws as she pleases for the safety, health, or morals of her people, and may use whatever means she may think proper to that end, subject only to this limitation, that in the event of collision with a law of Congress, the State must yield. Commonwealth v. Kimball, 24 Pick. 363. The commissioners to license, as innholders and retailers, as many applicants as they shall decide the public good may require. The law now in force (Rev. Stat. ch. 47, 1835) altered this provision to power to county commissioners to license as many persons as they shall think the public good may require. Then followed the declaratory Act of 1837, ch. 242, that the commissioners might withhold all licenses in their discretion. The Act of 1838, ch. 157 (commonly called The Fifteen-gallon Law), made penal all sales of spirituous liquors less than fifteen gallons; licensed only apothecaries to sell for medicine and the arts, and punished the sale by them, if to be drank; and repealed all laws inconsistent with this act. This brought up the question of prohibition. The act was contested in the courts of Massachusetts as unconstitutional, but was not decided there before it was repealed, in 1840, without any reservations. The Supreme Court of that State thereupon decided, in 1840, that the repeal revived the pre-existing laws, chap. 24. Now, Congress, by law and by treaties, 47 of Rev. Stat. and chap. 242 of 1837. Comauthorizes foreign commerce with the States in monwealth v. Churchill, 2 Metcalf, 118. Since wines and spirits. By the treaty of indemnity then no licenses have been granted. The plainwith France, in 1832, the wines of France were tiff's first sale in the case at bar was in May, "admitted to consumption in the markets of 1841, and this case has been brought up on the United States." The law of Massachusetts writ of error as soon as the laws of Massachushuts her markets against the fair and just opsetts and the decisions of her highest court eration of these laws and treaties of the United have established prohibition as the law of that States, and renders them so far inoperative. 25. The general view as to the prohibitory provisions of the laws of Massachusetts in this matter, taken together, is, that it is a blending of two powers to be exercised at pleasure under the statute: one legitimate-to regulate; the other unconstitutional-to prohibit, whenever the public sentiment of the State comes up to that point. State. 28. The law of Massachusetts comes in collision with the power of Congress over revenue, which is a supreme power, used as a substitute for taxation. With this view, the Constitution requires that "all duties shall be uniform throughout the United States." If Massachusetts, by her laws, can exclude one or more articles of import, she pays so much 26. Massachusetts assumes to abolish foreign less revenue than other States that admit all. commerce in her markets in imported spirits, This makes the operation unequal so far, arison the ground of thereby preserving the health ing from the legislation of Massachusetts adand morals of the people; but at the same verse to the power of Congress to collect revenue time, in her internal commerce and exports, in all the States. Suppose the duty on foreign she encourages; without tax or excise, an annual wines and spirits to be one fourteenth part of manufacture by her citizens of 5,177,910 gal-all the revenue, the States can cut that off, if lons of domestic spirits; which is one eighth part of the whole product of the United States in spirits distilled from molasses and grain. this legislation is valid; and, by the same rule, all other sources to collect revenue are wholly destroyed. more of the articles admitted, by denying sale, the United States cannot in good faith perform any such reciprocal engagement. 27. Congress has not changed its policy in 29. So of the treaty making power. The Unitthis respect, but Massachusetts has changed ed States has power to reciprocate its markets hers, in opposition to the laws of Congress. with the markets of foreign nations; but if a Until 1837, the laws of Massachusetts uni-State can shut its markets against any one or formly provided for the sale and consumption of wines and ardent spirits imported into her markets. The Act of 1786, ch. 68, 1 Mass. Laws, 297, was in force with additional acts 30. *The laws of Massachusetts, there- [*519 till 1832. By section fifteen, the general ses- fore, which, by their provisions, and their operasions were not to license more persons in any tion in conformity to such provisions, prohibit all town than they shall judge necessary for re- commerce in wines and spirits in quantities 518*] freshment of travelers, or are neces-under twenty-eight gallons, are repugnant to sary for the public good, by which was meant the Constitution and laws of the United Statesthe public convenience. Act of 1792, ch. 25, 1st. In the power to regulate foreign comp. 417, required all persons to be licensed, on satisfactory evidence of fitness, and that such license will be subservient to the public good. Additional Acts, 1807, ch. 127; 1816, ch. 112; 118, ch. 65. The Act of 1832, ch. 166, reduced the maximum to ten gallons, and provided for a new merce. 2d. In the power to collect revenue on imports into the several States. 3d. In the equal apportionment of taxes and duties in all the States; and, 4th. In the power to make treaties. a sketch of the argument, and shows the posi- | to the policy of Massachusetts, or anxious to tions assumed and maintained by him for the promote drinking to increase the revenue. defendant in error: The broad ground assumed by the plaintiff's counsel is, that the statute of Massachusetts is unconstitutional, because it "prohibits, restrains, controls, or prevents the sale of imported wines and spirituous liquors, by retail or otherwise, in the State." It also proves that the State has at all times during its organization as a body politic considered restraint in the traffic of spirits as essential to the public welfare. But the State is not an exception to other communities in this respect, but has followed out a principle which has been maintained and enforced through all ages among the civilnations. To make the policy of Massachusetts, in restraining an indiscriminate traffic in intoxicat-ized ing drinks, intelligible, we must understand its history, and the state and condition of things when the Constitution of the United States was made. Mr. Davis then proceeded to prove, from historical authority, that the ancient Egyptians, the Greeks, the Romans, and the more Eastern nations did, through most periods of their The court has often declared, that in a com- existence, maintain rigid and severe restrictions plicated system, which establishes two govern- upon the use of wine, and that excessive inments over the same people, it is necessary, indulgence at all times was esteemed criminal. considering questions of power, to look into contemporaneous facts; that the objects designed to be secured by the federal Constitution may be understood, and, if possible, carried into effect. The context of the instrument is not alone to be regarded, but the whole machinery of government; and care must be taken, in carrying out the fundamental principles, that the purpose of the framers is not frustrated. As the power of Massachusetts to make laws restraining traffic in intoxicating drinks is denied, I shall, as a preliminary step, briefly state the history of her legislation upon this subject, and point out the consequences which will follow if this doctrine is maintained. The law of Massachusetts was revised in 1836; but acts similar in principle, and nearly so in detail, have existed for more than two centuries, and been enforced by her judicial tribunals. Ancient Charters, 135, 314, 433, Laws of Mass. 1786, ch. 68; Revised Statutes, ch. 47, and several other statutes. The law, substantially as it now is, forbid ding a sale without a license in less quantities than twenty-eight gallons, was made in 1786, and was in force when the federal Constitution was ratified, and has, with immaterial modifications, remained so from that time to this. From thence till this time, the revenue sys520] tem of the United States has been in force; and the laws which are now supposed to conflict have during all that time worked harmoniously together. After a lapse of fifty-six years, it is now first discovered that the State is trenching upon the power of the United States, and impairing the revenue by restraining the sale of imported wines and spirits. Let it be remembered, however, that the United States do not and have not complained of any wrong done by the State; nor has any question ever been agitated in that quarter, in regard to the diminution of the revenue; which makes it quite apparent that no serious inconvenience is felt. While, however, I admit the right of the plaintiff to appeal to this court, I must observe, that, although this long acquiescence may not prove the law of the State to be constitutional, it establishes the fact that it has produced no noticeable or sensible influence upon the rev enue or the revenue power of the United States. It would seem, also, to be a clear indication that the federal government is not hostile He referred also to China, and the bordering nations, where abstinence from intoxicating drinks was enforced as a religious duty. He referred also to the western nations of Europe, whose opinions and laws were equally condemnatory of excessive indulgence, and remarked that but one opinion prevailed through all ages. He said that the common law of England and this country frowned upon intemperance, and held it to be without apology; for, while mental alienation by the province of God was a justification of crime, when it occurred by drink it was not; but the party was held answerable, because his insanity was occasioned by his own folly. Even in the new settlement of Oregon, made up of people, congregated from different parts of the earth, the sale and manufacture of spirits was forbidden by law. But there was no occasion to multiply proofs of public opinion, for intemperance was everywhere deprecated and lamented, and had almost everywhere fallen under the condemnation of legal restraint, *by enactments for that [*521 purpose, or by taxation. Experience had everywhere proved that there was a proneness in the human appetite to excess which requires control. It should be observed, that the ancients were unacquainted with alcohol, and used wine in its simplest and most unobjectionable forms; while upon the moderns the double duty is devolved of contending against the demoralizing effects of both. The train of evils which mark the progress of intemperance is too obvious to require comment. It brings with it degradation of character, impairs the moral and physical energies, wastes the health, increases the number of paupers and criminals, undermines the morals, and sinks its victims to the lowest depths of vice and profligacy. In proof of this, there were in New York, in 1845, 26,114 paupers, 6,245 of whom were reduced to that condition by intemperance. In the same year there were in Massachusetts 14,308, and 6,740 were addicted to excessive drinking. In the Sing Sing penitentiary, in 1845, there were 861 convicts, and 504 of these had been intemperate. The returns of other poor-houses and penitentiaries are equally startling. These facts prove that intemperance is an evil of all-prevading magnitude, and that all ages and communities have set upon it the seal of disapprobation. Such being its character, and such the evils | Constitution. This is an irresistible inference; which it engenders, the Colony, the Province, but the State made it doubly certain, by deand the State of Massachusetts held it to be an claring in amendment the fact, in the most imperative duty to check its progress by suit- clear and explicit terms. able restraint, and to promote sobriety and temperance by wholesome regulations. Her law stood upon her statute book when the federal Constitution was made, and there it still remains. No argument can make the fact clearer, that she has at all times esteemed legal restraint as indispensable to the public welfare. While, therefore, the United States hold the powers which are granted, the States hold those which are not granted or prohibited, and both are fully sanctioned and maintained by the Constitution. The plaintiff, therefore, must maintain that Massachusetts has, in making her law, exercised a power not reserved to her. Suppose, then, that the law of the State He makes it a question concerning commerce. should be held unconstitutional, and she should He contends that the law, in effect, regulates be denied the power to legislate upon the sub-foreign trade, the power to do which is conject; what consequence would follow? fided to the United States. It will appear in the progress of this inquiry, that the United States have no power to regulate the traffic in wines and spirits within the States; and if the State has no such power, then the right is abrogated. Is not such a result hostile to the intent of all parties to the Constitution? The framers did not intend it, and the States could not have contemplated it. The United States are as much interested in the preservation of life, health, and morals as the States can be, and the motive to avert pauperism, crime, and profligacy must, with them, be equally presuasive. The policy and duty of the federal and States governments must obviously be concurrent, and cannot be arrayed in hostile attitude without violence to both. 522*] *Neither the United States, nor the State of Massachusetts, could, therefore, when making the Constitution, have anticipated the abrogation of this power; and if it has been done, it is contrary to the intent of the parties. This is inferable, not only from what has been stated, but from the fact that these parties have moved on in their respective spheres for fifty-six years, in the exercise of their respective claims to power, without conflict and without entertaining a suspicion that the State has been enforcing laws without authority and in violation of right. The ground assumed is, that the United States authorize importations, and levy upon them a duty for revenue; that the right to sell is incident to the right to import, and cannot be controlled or regulated by the State in such a manner as to diminish the sales or to impair the revenue. The Constitution declares, that Congress has power "to regulate commerce with foreign nations, and among the several States, and with the Indian tribes." *These words give all the authority [*523 which the United States have over commerce. The power is manifestly limited to commerce with foreign nations, commerce among the States, and commerce with the Indian tribes. The grant covers these three kinds of commerce, and nothing more. In this case, commerce with foreign nations alone is to be considered. The domestic commerce is necessarily excluded; for it is neither foreign, nor is it trade among the States, nor with the Indian tribes. This inference is not only apparent from the language of the Constitution, but is fully sustained by authority. In Gibbons v. Ogden, 9 Wheat. 203, the court, in commenting on inspection laws, employ the following language: "They form portion of that immense mass of legislation It would be a singular result, and one to be which embraces everything within the terrideprecated, if, in giving construction to the tory of a State, not surrendered to the general Constitution, the court should arrive at a con-government; all which can be most advantaclusion injurious both to the United States geously exercised by the States themselves. Inand the States; a result which both would de- spection laws, quarantine laws, health laws of plore as hostile to their best interests, and sub-every description, as well as laws for regulating versive of the purposes which they had in view the internal commerce of a State, are comwhen they entered into the constitutional component parts of this mass. No direct genpact. eral power over these objects is granted to Congress; and consequently they remain subject to State legislation." Nothing but a commanding necessity can sanction such a step, and it never will be taken unless under an imperiously pressing sense of duty. With such facts and circumstances as these surrounding it, we come to the consideration of the question, whether the law of Massachusetts is constitutional. The plaintiff in error assumes the affirma tive, and must establish the fact that it is incompatible with, or repugnant to, the Constitution and laws of the United States. It will not be denied that the federal govern ment has no powers except such as are granted to it and are enumerated in the Constitution. On the other hand, it is equally clear and Indisputable, that the States retain in themselves all powers not so granted or prohibited by the Again, in the same case the court speak of the power to regulate the internal trade and commerce of a State as an acknowledged power of the State. It is therefore judicially settled that the power to regulate the internal commerce of a State is reserved to and resides in it. Such being the partition of powers between the States and the United States, I come to the inquiry, What is the character of the law of Massachusetts? Upon what basis does it stand, and from what power or right in the State is it derived? And I shall contend that it is a regulation of the internal commerce of the State, having for its object the preservation of order, morals, and health, and intended to dis courage intemperance and to promote sobriety. | supremacy extend Over the acknowledged And such being its general characteristics, I powers of the States? Is it unlimited, and must shall also contend further that it falls within a State yield to its touch whenever felt? No that class of laws generally called police regu- one, I believe, will urge the doctrine to this lations. extremity. The decision of this tribunal will establish the fact that the supremacy of federal power in cases of conflict has boundaries and limits, and that the action of State laws derived from powers reserved to the States is never uncon stitutional until it becomes incompatible with, or repugnant to, the federal laws. The trade intended to be regulated is completely internal, and spread over the whole territory of the State. That the regulation of such a commerce belongs to the State is evident, not only from the authority cited, but from the language of the court at page 195 of the same case. "The completely internal commerce of a State," says Chief Justice Marshall, But what is incompatibility? What is repug"then, may be considered as reserved for the nancy? This inquiry often presents [*525 State itself." perplexing considerations, because no fixed, The State has furthermore a right to provide determinate rule can be laid down by which for the health of its citizens by police regula-cases can be tested; but each case, as it comes tions. In Gibbons v. Ogden, 9 Wheat. 205, up, is left to be decided by the facts which 524*] the court say of quarantine and health surround it. Whenever State power touches laws, "They are considered as flowing from that of the United States, whoever may profit the acknowledged power of the State to pro- by it is anxious to make out a case of incom. vide for the health of its citizens"; again, at patibility or repugnancy, and thus every seempage 208, "the acknowledged power of a State ing conflict is liable to become a matter of to regulate its police, its domestic trade, and judicial investigation; and there is a constant to govern its own citizens," is spoken of as un- disposition manifested to expand the power of questioned. the general government, and to contract that of the States. It may, then, be assumed on authority which does not admit of doubt, that a State has a right to regulate its internal commerce, and to provide for the health and government of its citizens by suitable laws. That such regulations are considered by this court to be police laws will not be doubted. These propositions are sustained by high authority. The State possesses the undeniable right to regulate its internal trade, and to maintain municipal or police regulations to protect and promote the welfare of the people. That a law restraining an indiscriminate traffic in wines and spirits, and designed to protect life and health by promoting temperance and sobriety, is a police law cannot be questioned. The law of Massachusetts being, then, a measure relating to a trade completely internal, and a police regulation, is, in all its aspects, founded on an acknowledged power which is vested in the State by the provisions of the Constitution. This being the highest source of authority, it would seem sufficiently to justify and maintain the law. We are not, however, without authority which throws no inconsiderable light on this inquiry. The learned commentator upon the Constitution (1 Com. 432), after an examination of all the authorities, sums up the result: "In cases of implied limitations or prohibitions of power [and this is one] it is not sufficient to show a possible or potential inconvenience. There must be a plain incompatibility, a direct repugnancy, or an extreme inconvenience, leading irresistibly to the same conclusion." Under this rule a State may exercise its power in any way or form, and to any extent, if its action upon federal power does not amount to manifest incompatibility or direct repugnancy. The fact of incompatibility or repugnancy must not be equivocal, but clear and certain. In cases of incompatibility, it must be apparent that the laws of the United States and a State supposed to be in conflict cannot stand together, or be reconciled or harmonized with each other. The whole doctrine of repugnancy and incompatibility is confined within these narrow limits. It is applied, in fact, only to cases where the power of a State so acts upon a power of the United States as substantially to subvert or defeat it. In such cases only has the supremacy of the federal law been maintained over constitutional State power. The rule clearly implies, in all cases Our system is obviously complicated, because of doubt, that the power of the State is to prethe federal and State governments extend over vail against this implied right of supremacy. the same territory and people, and act upon Even potential inconvenience is not to be rethe same persons and things. For example, garded, but must be tolerated as long as it falls foreign commerce is destined to become in-short of incompatibility or repugnancy. ternal, and internal to become foreign. This It requires but little consideration of the flux and reflux from jurisdiction to jurisdiction brings the laws into contact, and the jurisdictions impinge upon each other. But it is contended that even this foundation may fail a State in cases of conflict; for the law of the United States is supreme, and must, in such cases, prevail against the admitted right of a State. This opens the question, Which in such cases shall prevail? The answer has been, that federal power in such cases is paramount and supreme. This is sometimes said to be an axiom to which State authority must bow in submission. But if we admit the authority, the question_still remains. How far does this implied subject to justify these cautious limits of power; for if the laws of the State must recede before those of the United States whenever they come in contact, it is manifest that State power would be in imminent danger of being obliterated; for, as State power yields, federal power must follow and press upon it. The dangers which beset the exercise of power by sovereignties whose limits of authority are not ascertainable cannot be more forcibly described than in |