brethren with whom I do not agree, it appears to me to be very clear, that the mere grant of power to the General Government cannot, upon any just principle of construction, be construed to be an absolute prohibition to the exercise of any power over the same subject by the States. The controlling and supreme power over commerce with foreign nations, and the several States, is undoubtedly conferred upon Congress. Yet, in my judgment, the State may, nevertheless, for the safety or convenience of trade, or for the protection of the health of its citizens, make regulations of commerce for its own ports and harbors, and for its own territory; and such regulations are valid, unless they come in conflict with a law of Congress. Such evidently, I think, was the construction which the Constitution universally received at the time of its adoption, as appears from the legislation of Congress and of the several States; and a careful examination of the decisions of this court will show, that, so far from sanctioning the opposite doctrine, they recognize and maintain the power of the States.

*

I have said that the legislation of Congress and the States has conformed to this construction from the foundation of the government. This is sufficiently exemplified in the laws in relation to pilots and pilotage, and the health and Quarantine laws.

"In relation to the first, they are admitted on all hands to belong to foreign commerce, and to be subject to the regulations of Congress, under the grant of power of which we are speaking. Yet they have been continually regulated by the maritime States, as fully and entirely since the adoption of the Constitution as they were before; and there is but one law of Congress making any specific regulation upon the subject, and that passed as late as 1837, and intended, as it is understood, to alter only a single provision of the New York law, leaving the residue of its provisions entirely untouched. It is true, that the act of 1789 provides that pilots shall continue to be regulated by the laws of the respective States then in force, or which may thereafter be passed, until Congress shall make provision on the subject. And undoubtedly Congress had the power, by assenting to the State laws then in force, to make them its own, and thus make the previous regulations of the States the regulations of the General Government. But it is equally clear, that, as to all future laws by the States, if the Constitution deprived them of the power of making any regulations on the subject, an act of Congress could not restore it; for it will hardly be contended that an act of Congress can alter the Constitution, and confer upon a State a power which the Constitution declares it shall not possess. And if the grant of power to the United States to make regulations of commerce is a prohibition to the States to make any regulation upon the subject, Congress could no more restore to the States the power of which it was thus deprived, than it could authorize them to coin money, or make paper money a tender in the payment of debts, or to do any other act forbidden to them by the Constitution. Every pilot law in the commercial States has, it is believed, been either modified or passed since the act of 1789 adopted those then in force; and the provisions since made are all void, if the restriction on the power of the States now contended for should be maintained; and the regulations made, the duties imposed, the securities required, and penalties inflicted by these various State laws, are mere nullities, and could not be enforced in a court of justice. It is hardly necessary to speak of the mischiefs which such a construction would produce to those who are engaged in shipping, navigation, and commerce. Up to this time their validity has never been questioned. On the contrary, they have been repeatedly recognized and upheld by the decisions of this court; and it will be difficult to show how this can be done, except upon the construction of the Constitution which I am now maintaining. So, also, in regard to health and Quarantine laws. They have

been continually passed by the States ever since the adoption of the Constitution, and the power to pass them recognized by acts of Congress, and the revenue officers of the General Government directed to assist in their execution. Yet all of these health and Quarantine laws are necessarily, in some degree, regulations of foreign commerce in the ports and harbors of the State. They subject the ship, and cargo, and crew to the inspection of a health officer appointed by the State; they prevent the crew and cargo from landing until the inspection is made, and destroy the cargo, if deemed dangerous to health. And during all this time the vessel is detained at the place selected for the Quarantine ground by the State authority. The expenses of the precautionary measures are also usually, and I believe universally, charged upon the master, the owner or the ship, and the amount regulated by the State law, and not by Congress. Now, so far as these laws interfere with shipping, navigation, or foreign commerce, or impose burdens upon either of them, they are unquestionably regulations of commerce. Yet, as I have already said, the power has been continually exercised by the States, has been continually recognized by Congress ever since the adoption of the Constitution, and constantly affirmed and supported by this court, whenever the subject came before it."

Justice Woodbury delivered a written opinion in the same case, from which the following extracts are made:

Again it has been strenuously insisted on in these cases, and perhaps it is the leading position, that these license laws are virtually regulations of foreign commerce; and hence, when passed by a State, are exercising a power exclusively vested in the General Government, and therefore void. This is maintained, whether they actually conflict with any particular act of Congress or not. But, dissenting from any such definition of that power, as thus exclusive and thus abrogating every measure of a State which by construction may be deemed a regulation of foreign commerce, though not at all conflicting with any existing act of Congress, or with any thing ever likely to be done by Congress, I shall not, on this occasion, go at length into the reasons for my dissent to the exclusive character of this power, because these license laws are not, in my opinion, regulations of foreign commerce, and in a recent inquiry on the circuit, I have gone very fully into the question. The United States v. New Bedford Bridge, in Massachusetts District.

My reasons are, in brief,—

1. The grant is in the same article of the Constitution, and in like language, with others which this court has pronounced not to be exclusive; e. g., the regulation of weights and measures, of bankruptcy, and disciplining the militia.

2. There is nothing in its nature, in several respects, to render it more exclusive than the other grants, but, on the contrary, much in its nature to permit and require the concurrent and auxiliary action of the States. But I admit that, so far as regards the uniformity of a regulation reaching to all the States, it must in these cases, of course, be exclusive; no State being able to prescribe rules for others as to bankruptcy, or weights and measures, or the militia, or for foreign commerce. A want of attention to this discrimination has caused most of the difficulty. But there is much in connection with foreign commerce which is local within each State, convenient for its regulation and useful to the public, to be acted on by each till the power is abused, or some course is taken by Congress conflicting with it. Such are the deposit of ballast in harbors, the extension of wharves into tide water, the supervision of the anchorage of ships, the removal of obstructions, the allowance of bridges with suitable draws, and various other matters

that need not be enumerated, beside the exercise of numerous police and health powers, which are also by many claimed upon different grounds. This local, territorial, and detailed, legislation should vary in different States, and is better understood by each than by the General Government; and hence, as the colonies under an empire usually attend to all such local legislation within their limits, leaving only general outlines and rules to the parent country at home, as towns, cities, and corporations do it through by-laws for themselves, after the State Legislature lays down general principles, and as the war and navy departments and courts of justice make detailed rules under general laws, so here the States, not conflicting with any uniform and general regulations by Congress as to foreign commerce, must for convenience, if not necessity, from the very nature of the power, not be debarred from any legislation of a local and detailed character on matters connected with that commerce omitted by Congress. And to hold the power of Congress as to such topics exclusive, in every respect, and probibitory to the States, though never exercised by Congress, as fully as when in active operation, which is the opposite theory, would create infinite inconvenience, and detract much from the cordial co-operation and consequent harmony between both governments, in their appropriate spheres. It would nullify numerous useful laws and regulations in all the Atlantic and commercial States in the Union.

If this view of the subject conflicts with opinions laid down obiter in some of the decisions made by this court, (9 Wheat., 209; 12 ibid., 438; 16 Peters, 543,) it corresponds with the conclusions of several judges on this point, and does not, in my understanding of the subject, contradict any adjudged case in point. 5 Wheat., 49; Wilson v. Blackbird Creek Marsh Company, 2 Peters, 245; 11 ibid., 132; 14 ibid., 579; 16 ibid., 627, 664; 4 Wheat., 196.

As a general rule, the power of a State over all matters not granted away must be as full in the bays, ports, and harbors within her territory, intra fauces terroe, as on her wharves and shores, or interior soil. And there can be little check on such legislation, beyond the discretion of each State, if we consider the great conservative reserved powers of the States, in their Quarantine or health system, in the regulation of their internal commerce, in their authority over taxation, and, in short, every local measure necessary to protect themselves against persons or things dangerous to their peace and their morals.

It is conceded that the States may exclude pestilence, either to the body or mind, shut out the plague or cholera, and, no less, obscene paintings, lottery tickets, and convicts. Holmes v. Jennison, et. al., 14 Peters, 568; 9 Wheat., 203; 11 Peters, 133. How can they be sovereign within their respective spheres, without power to regulate all their internal commerce, as well as police, and direct how, when, and where it shall be conducted in articles intimately connected either with public morals, or public safety, or the public prosperity ? See Vattel, B. 1, ch. 19, 219, 231.

The list of interdicted articles and persons is a long one in most European governments, and, though in some cases not very judicious or liberal, is in others most commendable; and the exclusion of opium from China is an instance well known in Asia, and kindred in its policy. The introduction and storage of gunpowder, in large quantities, is one of those articles long regulated and forbidden here. New York v. Milne, 11 Peters, 102. Lottery tickets and indecent prints are also a common subject of prohibition almost everywhere. 6 Greenleaf, 412; 4 Blackford, 107.

So the power to forbid the sale of things is surely as extensive, and rests on as broad

yet

principles of public security and sound morals, as that to exclude persons. And who does not know that slaves have been prohibited admittance by many of our States, whother coming from their neighbors or abroad? And which of them cannot forbid their soil from being polluted by incendiaries and felons from any quarter?

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 police, while it is fairly exercised so as to accomplish 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, independent 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 a poor-house farm for its wretched outcasts, or a receptacle for its poisons to health, and instruments of gam bling and debauchery.

There may be some doubt whether the General Government, or each State, possesses the prohibitory power, as to persons or property of certain kinds, from coming into the limits of 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 any where granted to or proper to the peculiar duties the General Government.

Or, if vested in the latter at all, it is but concurrent.

Justice McLean did not concur, however, with the Chief Justice and Justice Woodbury, as to the power of States over commerce, but thus. distinctly recognized the internal police power of the States:

"The acknowledged police power of a State extends often to the destruction of property. A nuisance may be abated. Every thing prejudicial to the health or morals of a city may be removed. Merchandize, from a port where a contagious disease prevails, being liable to communicate the disease, may be excluded; and, in extreme cases, it may be thrown into the sea. This comes in direct conflict with the regulation of commerce, and yet no one doubts the local power. It is a power essential to self-preservation, and exists, necessarily, in every organized community. It is, indeed, the law of nature, and is possessed by man in his individual capacity. He may resist that which does harm him, whether he be assailed by an assassin, or approached by poison. And it is the settled construction of every regulation of commerce, that, under the sanction of its general laws, no person can introduce into a community malignant diseases, or any thing which contaminates its morals, or endangers its safety. And this is an acknowledged principle applicable to all general regulations. Individuals, in the enjoy. ment of their own rights, must be careful not to injure the rights of others.

"From the explosive nature of gunpowder, a city may exclude it. Now this is an article of commerce, and is not known to carry infectious disease; yet, to guard against a contingent injury, a city may prohibit its introduction. These exceptions are

always implied in commercial regulations, where the General Government is admitted to have the exclusive power. They are not regulations of commerce, but acts of selfpreservation. And although they affect commerce to some extent, yet such effect is the result of the exercise of an undoubted power in the State.

*

"In all matters of government, and especially of police, a wide discretion is necessary. It is not susceptible of an exact limitation, but must be exercised under the changing exigencies of society. In the progress of population, of wealth, and of civilization, new and vicious indulgences spring up, which require restraints that can only be imposed by the legislative power. When this power shall be exerted, how far it shall be carried and where it shall cease, must mainly depend upon the evil to be remedied. Under the pretence of a police regulation, a State cannot counteract the commercial power of Congress. And yet, as has been shown, to guard the health, morals, and safety of the community, the laws of a State may prohibit an importer from landing his goods, and may sometimes authorize their destruction. But this exception to the operation of the general commercial law is limited to the existing exigency.

*

"The police power of a State and the foreign commercial power of Congress must stand together. Neither of them can be so exercised as materially to affect the other. The sources and objects of these powers are exclusive, distinct, and independent, and are essential to both governments."

And Justice Grier, in the same case, said :—

It has been frequently decided by this court, "that the powers which relate to mercly 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.

As subjects of legislation, they are 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 operations, on any ground of prerogative or supremacy. The exigencies of the social compact require that such laws be executed before and above all others. 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 instrument of commerce, and its officers and crew, the agents of navigation. They seize the infected cargo, and cast it overboard. The soldier and the sailor, though in the service of the government, are arrested, imprisoned, and punished for their offences 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 intefere 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.