Thurlow v. Massachusetts

Laws of Massachusetts, providing that no person shall presume to be a retailer or seller of wine, brandy; rum, or other spirituous liquors, in a less quantity than twenty-eight gallons, and that delivered and carried away all at one time, unless he is first licensed as a retailer of wine and spirits, arid that nothing in the law should be so construed as to require the county commissioners to grant any licenses, when in their opinion the public good does not require them to be granted,—

All adjudged to be not inconsistent with any of the provisions of the constitution ' of the United States or acts of Congress under it.

These cases^ were all brought up from the respective State courts by writs of error issued under the twenty-fifth'section of the Judiciary Act, and ’were commonly-known by the name of the License Cases.

Involving the same question, they were argued together, but by different counsel. When the decision of the court was pronounced, it was not 'accompanied by any opinion of the court, as such. But six of the justices gave separate opinions, each for himself: Four of them treated the cases collectively in one opinion, whilst the remaining two expressed opinions in the cases separately. Hence it becomes necessary for the reporter to make a statement in each case, and to postpone the opinions until the completion of all the statements. The arguments of Counsel in each case will of course follow immediately after the statement in that case. They are placed in the order in which they are put by the Chief Justice in his opinion, but where the justices have given separate, opinions in each case, the order is observed which they themselves have chosen.

*505 Mr. Chief Justice Taney, one opinion,- three cases, Ü» <1 00 ►Cl

Mr. Justice McLean, three opinions.

Mr, Justice Catron, two opinions.

(p.-bll.) Mr. Justice Daniel, one opinion, three cases,

To begin with the case of

It becomes necessary to insert the .forty-seventh chapter of the Revised Statutes, and also all act passed' in 1837. They are as follows : —

Revised Statutes of Massachusetts, Chap. 47. — The Regulation of Licensed Houses.

“ Sect. 2. If any person shall sell any wine or spirituous liquor, *506 or toy mixed liquor, part of which is spirituous, to be used in or about his house or other buildings, without being duly licensed as an innholder or common victualler, he shall forfeit for each offence twenty-dollars.

“ Sect. 3-. No person shall presume to be á retailer or seller of wine, brandy, rum, or other spirituous liquors, in a less quantity than twenty-eight gallons, and that delivered and carried away all at one time, unless he is [at] first licensed as a retailer of wine and spirits, as is provided in this chapter, on pain of forfeiting twenty dollars for each offence.

“ Sect. 4. If any person, licensed to be a retailer as aforesaid, shall sell any of the above liquors', either mixed or unmixed, to be used in or about his house'or shop, he shall forfeit for each offence twenty dollars.

“ Sect.-5. Every innholder shall at all times be furnished with suitable provisions and lodging for strangers and travellers, and with stable-room, hay, and provender for their fiorses and cattle ; and if he shall nofbe at all times so provided, the county commissioners may revoke his license.

“ Sect. 6. Every common victualler shall have all the rights and privileges, and be subjéct to all the duties and obligations, of inn-holders, excepting • that he shall not be required to furnish lodgings for travellers, nor ’stable-room, hay, and provender for horses and cattle. -

“ Sect. 7. Every, innholder and common victualler shall at all times have a board or sign affixed to' his house, shop, cellar, or store, or in some conspicuous place near the same, with his name at large thereon, and the employment for which he is licensed, on pain of forfeiting twenty dollars.

‘‘ Sect. 8. If any'innholder shall, when requested, refuse to receive. and make suitable provisions for strangers and travellers, and their horses and' cattle, he shall, upon conviction thereof before the Court of Common Pleas, be punished by a fine not exceeding fifty dollars, and shall also, by order of the said court, be deprived of his license ; and the court shall order the sheriff or his deputy forthwith to cause his sign to be taken down.

“ Sect.. 9. No innholder or common victualler shall have or keep in or about his house, or other buildings, yards, and gardens, or dependencies, any dice, cards, rbowls, billiards, quoits, or other implements used in gaming, nor shall suffer any person resorting thither to use or exercise any of said games, or any. other unlawful game or sport within his said premises, on pain of forfeiting ten dollars for every such offence,.

“ Sect. 10. Every person convicted of using or exercising any of the games aforesaid, in or about any such house or building of an' innholder or common victualler, shall forfeit ten dollars.

“ Sect. 11. No innholder or common victualler shall suffer any *507 person to drink to drunkenness or excess in bis premises, nor suffer any minor or servant, travellers excepted, to have any strong drink there, on pain of forfeiting five dollars for each offence.

“ Sect. 12. If any innholder or common victualler shall trust or give credit to any person for liquor, he shall lose and forfeit all the sums so trusted or credited, and all actions brought for such debt shall be utterly barred ; and the defendant in such action may plead the matter specially, or may givé it in evidence under the general, issue.

“ Sect. 13. If any common victualler shall keep open his house, cellar, shop, store, or place of business on any part of .the Lord’s day or evening, or at a later hour than ten of the o’clock in the.evening of any other day of the week, and entertain any person therein by selling" him any spirituous or strong liquor,'he shall forfeit for each offence ten dollars.

. ' l( Sect. 14, When any person shall, by excessive drinking of spirituous liquors., so misspend, waste, or lessen his-estate as thereby either to expose himself or his family to want or indigent circumstances, or the town to which he belongs to expense for the maintenance of him or his family, or .shall so habitually indulge himself in the use of .spirituous liquors as thereby greatly to injure his health or endanger the loss thereof, the selectmen of the town in which such spendthrift lives shall, in writing under their hands, forbid all licensed innholders, common victuallers, and retailers of the same •town, to sell to him ány spirituous or strong liquors aforesaid for the space of one year ; and they may in like manner forbid the selling of any such liquors to the said spendthrift by the said licensed persons of any other town to which the spendthrift may resort for the same ; and the city clerk of the city of Boston shall, under the direction of the mayor and aldermen thereof, issue a like prohibition as to any such spendthrift in the. said city.

“ Sect. 15. The said mayor and aldermen, and said selectmen, shall, in the same manner, from year to year,' renew such prohibition as to all such persons as have not, in their opinion; reformed within the year; and if any innholder, common victualler, or retailer shall, during any such prohibition, sell to any such prohibited person any such spirituous liquor, he shall forfeit for each offence twenty dollars.

“ Sect.- 16. When the said mayor and aldermen, or selectmen, in execution of the, foregoing provisions, shall have prohibited the sale of spirituous liquors to any such spendthrift, if any person shall, with a knowledge .of said prohibition, give, sell, purchase, or procure for and in behalf of such prohibited person, or for his use, any such spirituous liquors, he shall forfeit for each offence twenty dollars.

11 Sect. 1,7. The commissioners in the several counties tñay.li-cense, for the towns in their respective counties, as many persons to *508 be innholders or retailers therein as they shall think the public good may- require ; and the mayor and aldermen of the city of Boston may, in like manner, license innholders and retailers in the said city; and the Court of Common Pleas in the county of Suffolk may, in like manner, license innholders and retailers in the town of Chelsea ; and every license, either to an innholder or retailer, shall contain, a specification of the' street, lane, alley, or other place, and the number of the building, or some, other particular'description thereof, where such licensed- person shall exercise his employment; and the license shall not protect any such person from the penalties provided in this chapter for exercising his employment in any other place than that which is specified in -the license.

“ Sect. 18. The mayor and aldermen of the city of Boston may license, for the said city, as many persons to be common victuallers as they shall think the public good may require ; and .every such license shall contain such a specification or description, as is mentioned in the preceding section, of the street or other place, and of . the building where the licensed person shall exercise his employment ; and the license shall not protect him from the penalties pro-" vidéd in this chapter for exercising it in any other place. '

“ Sect. 1$; All licenses to any innholder, retailer, or Common victualler .shall expire on the first day.of April in- each year ; but day license may be granted or renewed at any time during the. preceding month of March^ to take effect from the said first day .of April, and after that day they may be granted for the. remainder of the -year, whenever the officers authorized to grant the same shall deem it expedient.

“Sect. 21. Any license to an innholder, retailer, or common victualler may be so -framed as to authorize the licensed person to sell wine, beer, ale,-cider, or any other fermented liquors, and not ■to authorize him to. sell brandy, rum, or any other spirituous liquor ; and no excise or fee shall-be required for such a license.

“Sect. 22. The'clerk of thé commissioners in the -several counties shall, seasonably, before the time for granting licenses in each- year, transmit to the ‘ selectmen of every town within the county a list of the persons in such town who were licensed as inn-holders .or retailers the preceding, year.

*509 “ Sect. 23. No license shall be granted or renewed to. any person, unless he shall produce a certificate from the -selectmen of’the town for which he applies to be licensed,, in substance, as follows, to wit: —We, the subscribers, a majority of the selectmen of the town of , .do hereby certify that . has applied to us to be recommended as .(here expressing the employment, and a particular description of the place for which the license is applied for) in the said town, and that, after mature consideration had thereon, at a meeting held for that purpose, at which, we were each'of us present, we are of opinion that the petition- of said be granted, he being, to the best of our knowledge, and behalf, a person of good moral .character.

“ Sect. 24. Any person, producing such certificate of the selectmen, shall be. heard, and his application decided upon, either On a motion made orally by himself or his counsel, or upon a petition, in writing, as he shall elect.

“ Sect. 25. If the selectmen of any town shall unreasonably neglect or refuse to make and deliver such a certificate, either for the original granting or the renewal of a license, the person aggrieved, thereby may apply for a license- to the commissioners, first giving twenty-four hours’ notice to a majority of the said selectmen of his. intended application, so that they may appear, if they s.eé fit, to'object thereto ; and if on-sueh,application it shall appear that the, said selectmen did unreasonably neglect or refuse to give the said certificate, and that:the public good requires that the. license should be granted, the commissioners may grant the same.

“ Sect. 26. All the fines imposed by- this chapter may be recovered by indictment, to the use of the cpuiity where the offence is committed ; and when the. fine does not exceed twenty dollars, the offence may be prosecuted before a justice of . the peace, , subject to the right of appeal to the Court of Common Pleas, as in other cases.

“ Sect 27. When any1 person shall be convicted under the provisions of this chapter, and' shall fail to pay the finé awarded against him, he may be imprisoned in the common jail for a time not ex-. ceeding ninety days, at the discretion of the court or justice before whom the trial may be had.

“ Sect. 28. All prosecutions, under the provisions of this chapter, for offences committed in the city of Boston (excepting where the fine exceeds twenty dollars), maybe heard and-determined in the Police Court, subject to the right of appeal to the Municipal C.ourt; but the said Police Court shall, not have power, in any such case, ■ to sentence any person to imprisonment, except as provided in the preceding section.

“ Sect. 29. Any person, licensed under the provisions of this chapter, who shall have-been twice befare convicted of- a breach of any of the said provisions, shall thereupon, in addition to the penal *510 ties before provided, be liable fo a further punishment, by imprison ment in the- common jail, for a time no t-exeeeding. ninety days, at the.discretion of the court before whom the trial may be had.”

“ An Act concerning Licensed Houses, and the Sale of Intoxicating Liquors.

“ Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority qf the same, as follows : —

“ Sect. 1. No licensed innholder, or other person, shall sell any' intoxicating liquor on Sunday, on pain of forfeiting twenty dollars for each offence, to be recovered in the manner and for the use provided in the twenty-sixth section of the forty-seventh chapter of the Revised Statutes.

“ Sect. 2. Any license toan innholder, or-common victualler, may be so framed as to authorize the licensed person to keep an inn or victualling-house without authority to sell any intoxicating liquor, and. no excise or. fee shall bq required for such license : Provided, that nothing contained in this act, or in the forty-seventh chapter of the'Revised Statutes, shall h.e so construed as to require the county commissioners' to grant any licenses, when- in their opinion the public good does not require them to be granted.

“ Sect. 3. Any person who shall have been licensed according to the provisions of the forty-seventh chapter of die Revised Statutes, or of this áct, and who shall have been twice convicted of. a breach of this act or of that chapter, shall, .on such second conviction,- in addition to the penalties prescribed for such offence, be adjudgéd to have forfeited his license.

“ Sect. 4. Any. person who shall have been three times convicted of a breach of this act, or of the forty-seventh, chapter of fhe Revised Statutes, shall, upon such third conviction, in addition to the penalties in this act and said chapter provided, be liable to be imprisoned in the common jail, for a time not exceeding ninety days, at the discretion of the court before whom the trial may be had.

“ Sect. 5. The secretary of this Commonwealth shall cause a condensed summary of all laws relating to innholders, retailers, and licensed houses to be printed for the use of this Commonwealth, and he shall supply the county commissioners for the several counties, and such other officers as by law, are authorized to gránt licenses, .with the same; and the said commissioners, or other officers, whenever they grant any license, shall furnish each person so licensed with one copy of said" license laws, to the end that such person may know to what duties, restrictions, and liabilities he is subjected by law.”

*511 A conviction having taken place, under the indictment upon,.these statutes, the defendant filed several exceptions, of which it is material to notice only the following : —

“2. It appeared upon the trial that some of the. sales charged in. the indictment were of foreign liqüors, and his Honor directed the jury that the license law of this Commonwealth applied ¿s well to imported spirits as to domestic, and that this Commonwealth could constitutionally control the sale of foreign spirits by retail, and that said law is not inconsistent with constitution or revenue laws of the United States. To this ruling also the defendant excepts.”

The.court below allowed, this exception, together with all. the others, upon which.the case was removed to the Supreme Judicial Court. But- that court overruled the exceptions, and ordered judgment to be entered upon the verdict.

Mr. Hallett, the eoünsel for Thurlow, then applied for,--and ob* tained, a writ of error to bring the .case to the Supreme Court of the United States, upon the following allegation of error, viz.:— '

.“ That the several acts .of the legislature of Massachusetts concerning licens'ed houses and the sale of intoxicating liquors, arid especially the acts which are hereto appended and set out ns pa^t of the record in the said cause, upon which said judgment was founded, and also the opinion and judgment óf said Supreme Judicial Court of'Massachusetts, in the application and construction of-said acts to the sales of imported foreign liquors and spirits by the said Tirar-lo w, are repugnant to, -and inconsistent with, the'provisions of the constitution, treaties, and laws of the United States, in so far as the ’said'acts, and the construction thereon by the said Supreme Judicial Court of Massachusetts, prohibit, restrain, control, or prevent the sale of imported wines and spirituous liquors, by retail or otherwise, in the said State of Massachusetts, and are therefore void.”' -

Upon die writ of error thus issued, the case came up‘to this court.

Mr.. Webster opened the case. The best mode of presenting his views of the poihts which arose will be, to .reprint'the brief.filed by himself and Mr-. Choate in the former argument.

It was as follows.: —

*512 1st. That they prohibit .even the importer of foreign spirits from selling them in the bottle, keg, or cask in which he imports them, either for consumption at the place of sale, or for carrying away ; and ore therefore unconstitutional, within the case of Brown v. Maryland, 12 Wheat. 419.

2d.. That they are void, as being repugnant to the legislation of' Congress, in their application to purchasers from importers, of whom the plaintiff is ohe ; and hereunder he submits the following analysis of his argument.

1st. The statutes of Massachusetts are not auxiliary to, cooperative witht and 'merely regulative of, the legislation of Congress, which admits foreign spirits to importation under prescribed rates of duty,, but are..antagonistieal to and in contravention of it, since they seek to diminish and discourage the sales of imported spirits to a greater degree than the legislation of Congress seeks to do it, upon tiie ground that the policy of Congress in this behalf is an erroneous policy.

To maintain this, the object and operation of the Massachusetts statutes, arid the policy and the principle of constitutional power upon which they proceed, are to be considered.

Without a license, no one can sell, in a single instance, spirits to be used on the premises of the vendor, and no one'can.sell them for the purpose of being carried away, in a less quantity than twenty-eight gallons, which must be bought and removed all at one time.

The result, therefore, is, that without a license no one can sell spirits to be used, or to be carried away for use, since no-one purchases for úse so large a quantity as twenty-eight gallons tó be carried away at one time.

Without a license, therefore, no one can sell at all by retail; and the retail, trade in spirits, the saje of spirits for use, is suppressed.

2d. No one is entitled to a license, or can exact it, whatever be his-character of fitness to trade. .

No court or person is required to give a license.' A tribunal called county commissioners, chosen by. the people of the counties* may, if in its judgment the public good requires it, grant licenses ; but even in such-case is not required to grant them.

For the last six' years none have been granted in the county of the plaintiff’s residence, containing more than one hundred thousand inhabitants.

■ This withholding of licenses is no fraud on the. Massachusetts statutes, but in perfect conformity with them.

Tn conformity with the law, thén? all sales of spirits for use may bé totally prohibited in Massachusetts.

These laws design, to do just what can be legally, and without' defrauding them, done under them.

• They design, then, to restrain all sales of spirits for us.e ; and they do this' upon a- general principle of policy, to wit :■ that such sales, for such purpose, fey whomsoever made, are. a public .evil.

*513 The difference, therefore, between them and all laws of mere policy, of quarantine, health', harbours, storage of gunpowder, and the like, is, that those laws are! auxiliary to, in aid and furtherance of, cooperative with, the Congressional legislation, while these deny its policy, and thwart and restrain its operations.

These statutes do not confine themselves to providing for suitable persons, places, and modes of selling foreign spirits, so aa to secure the largest amount of traffic in the most expedient and prudent manner y but they mean, substantially and effectually, to put. an end to the traffic.

The plaintiff in error, therefore, will discuss thesd laws, as if they did, in terms, prohibit all persons who buy . of importers from reselling, since they do substantially so operate ; and they assert- a principle of power broad enough to go to that extent.

The general question, therefore, is this. Is a State law, prohibiting purchasers of spirits from importers to resell, on the ground that, for moral, medical, economical, or other reasons, the public good will not be promoted by such sale, repugnant to the acts of Congress, and to treaties authorizing importations of such spirits ?

These sales were in 1841 j and subsequent. The acts of Congress are, 1832, ch. 227, 4 Statutes at Large,- 583 ; 1833,. ch. 55, 4 ibid. 629 ; 4 ibid. 25 ; 3 ibid. 310.

These-authorize importations in casks of fifteen gallons.

2d. What is the extent of the effect of an act of Congress authorizing importations ?

1. Regarded as a license to, or contract with, the importer, communicating a right to sell, according to the view in Brown v. Maryland, 447, whát is its extent ?

• The plaintiff contends that it would be repugnant to, and in fraud of, the license, either to ordain that no one shall buy of the importer, .or. to ordain that no one, having bought, shall resell, because either prohibitión would totally defeat the license itself. The license is a license to. carry the article to market,- to trade in' it, to have access with it to the consuming capacity of the country.

The grounds on which Congress legislate, in passing such an act-, 'and the just expectations and reasonings of the importer, "prove this.

2. Regarded as Congressional legislation, an act authorizing importations of spirits is a legislative determination that the ,fofeign article may properly, and shall, enter into the consumption “bf the country,'and be sold in the interior market thereof; and the Massachusetts statutes are intended to contravene.that determination, upon a directly opposite view of policy.

3. Congress has the constitutional power to determine, on general grounds of policy, -what foreign articles shall enter into the-con *514 sumption of the country, and be sold in the domestic' market, and to what extent; and it exercises'this power by an act laying duties. - It determines that all which- can be introduced and sold under such a rate of duties shall be, and the power of the States is merely auxiliary, cooperative, and regulative, securing proper persons by-whom the traffic shall be conducted, but not discountenancing and discouraging the traffic itself. . That power these statutes’transcend. ■

It may be proper, also, in this connection, to reprint the abstract of the argument of Mr. Hallett, upon the same side, to show the reasons given for the doctrine sustained by the counsel for - the plaintiff in error. Mr. Hallett'1 s abstract was as follows : —

Are the laws of Massachusetts concerning'the sale of imported wines and spirits constitutional and valid ?

We contend they are not, because, —

. 1. No State can prohibit, by wholesale or retail, the sale of merchandise authorized by a valid Igw of Congress, or by treaties, to be imported -into its markets ; the retail sale being as indispensable to the object of importation, viz. use ’ and consumption, as the wholesale.

2. The laws' of the United States nowhere recognize any distinction between the wholesale and retail of imported merchandise, as connected with, the right of the importer to introduce such merchandise, for use and consumption, into the markets of the United States.

3. Every concurrent or other power in a State is subject in its exercise to this limitation, that in tire event of .collision, the law of the, State must yield to the law of Congress, constitutionally passed. New York®. Miln, 11 Peters, 102; Commonwealth®. Kimball, 24 Pick. 359. .

• 4. If Congress has the power to'regulate a subject-matter, a State cannot interfere to oppose or impede such regulation. The general government, ’ though limited, is supreme as to those objects over which it has power.' ■ Martin ®. Hunter, l Wheat. 304.; Cohens v. Virginia, 6-Wheat. 384 ; Prigg ®. Pennsylvania, 16 Peters, 539.

5. The .commerce which Congress may regulate is something more than traffic. It is every species of commercial intercourse between the United States and foreign nations, and among the several States; u These words [regulate commerce] comprehend' every species of 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 ®. 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, inde *515 pendent 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 commérce, must, not terminate at the boundaries of the State, but must enter its interior. The power is coextensive 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 a1 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 county commissioners, to be exercised in their uncontrolled discretion, should retain it, to be exercised by herself; it would be unlawful legislation, and collision of a State law with a law of the United States.-

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, unconstitutional, the answer is, that a State cannot 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 arid contemplates collision with a law of the United States, the former is invalid, and must yield whenever the collision arises.

14. The laws of Congress make no distinetion 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 th.e like power in respect to all other descriptions of imports, whenever the public sentiment in a State demands its exercise.

15. There is no preeminence given to that class of State-legislation denominated police laws over other laws, whenever they cojpe 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 supretne law of the land.

16. The law of Massachussetts in question is not a health law against contagion or mfectipn in the article imported; it aims to keep it out of the hands of the consumer, on • the ground of its abusé 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 ¿ 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.) exclude imported wines and spirits, or any sound article- of. commerce, frqm reaching the importer :. and this is an obvious distinction hetween health laws and a law of prohibition to cut off the transfer óf a sound article from the importer to the consumer.

■ 18. The point where regulation ceases and prohibition begins is the point of collision, and. of unconstitutional operation, of,.a State law affecting foreign commerce. In this respect a .State law becomes a law of prohibition when it 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 imported 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 beyon'd the'importer, or it is an inoperative right.

21. The argument oh the other-side is, that if the power to *517 regulate commerce can follow the imported article, with its vendible quality attached, into a State, it can compel consumption by the citizens of that State. This confounds the mere commercial right to offer for sale with the power to force purchase. All the 'law of' Congress requires in the markets of the United States is a right to sell and buy ; and when this right ceases, commerce ceases.

.. 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 nó need of a prohibition of sale. ' The law of prohibition proceeds on the-ground, that if commerce in this article were not denied, there woúld be such commerce ; and therefore it directly interferes with the law of-Congress regulating that commerce.

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 énd, subject only to this limitation, that .in the event of collision with a láw of Congress, the State must yield. Commonwealth v. Kimball, 24 Piclfr 363.

.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 in the State comes up to that point.

26. Massachusetts assumes to abolish foreign commerce in her markets in imported spirit's, on the ground of thereby preserving the health and morals of the people ; hut at the samé .time, in her internal commerce and. exports, she encourages, without tax or excise, an annual manufacture, by her citizens of' 5,177,910 gallons of domestic spirits, which is one eighth part of the -whole product of ‘he United States in spirits distilled from molasses and grain.

27.'Congress has not changed, its policy-in this respect, -but Massachusetts has changed hers, in opposition to the laws of- Congress. Until 1837$ the laws -of Massachusetts uniformly 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 additiohal acts till 1832. By section ’fifteen,, the general sessions-were not to license more.-persons in any town than they shall judge necessary, for refreshment óf .travfeliers, *518 or are necessary for' the public good, by which was meant the public convenience. Act of 1792, ch. 25, p. 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; 1818, ch. 65.

‘ The act of 1832, ch. 166', reduced the maximumtoten gallons; and provided for a new class, victuallers. The commissioners to license, as innholders and retailers, as many applicants as they shah decide: the. public good may require. The ¡law now in force (Rev. Stat., ch. 47, 1835) altered this provision, to power tb county commissioners to license as many persons as they shall think the puhlic good'may require.

Then followed the declaratory act of' 1837, ch. 242, that the cbmmissioners might withhold all licenses in their discretion.

The act of 1838, ch. 157 (commonly called The Fifteen-gallon Ltfw), 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.

If Massachusetts, by her laws, can exclude one-or more articles of import, she pays so much less revenue than other States that admit all. .This makes the. operation unequal so- far, arising from the legislation of Massachusetts adverse to the power of Gongtess to. collect revenue in all the Slates. Suppose the duty on foreign-wipes apd • spirits to be one fourteenth part of all' the revenue, the States can cut that off, if this legislation is valid ; an'd, by the same rule, all other sources to collect revenue are-wholly destroyed.

29. So of the treaty-making-power. The . United States has power to reciprocate its. markets with the markets of foreign nations ; but if - a State -can shut its markets against any one or more of the articles admitted, by denying sale, the United States, cannot in gciod faith perform any such reciprocal engagement.

1st. In the power to regulate foreign commerce.

2d. In-the power to collect revenue on imports into the several States.

3d. In the equal apportionment of taxes and duties in aH the States ; and,

4th. In the power to make treaties.

The following is a sketch of the argument, and shows the positions assumed and .maintained by him for the 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 find spirituous liquors, by retail or otherwise, in the State.”

To make the policy of Massachusetts, in restraining an indiscriminate traffic, in intoxicating drinks, intelligible. we„must understand its history, and the staté and condition of things when the constitution of the United States was made.

The court has often declared, that in a complicated system, which establishes two governments over the same people, it is necessary, in 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. 1

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.

From thence till this. time, the revenue system of the United *520 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 ha^e 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 revenue or the revenue power of the United States.' It would seem, also, to be a clear indication that the federal government is not hostile to the policy, of Massachusetts, or anxious to promote drinking to increase the revenue.

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 civilized nations.

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 existence, maintain rigid and severe restrictions upon the use of wine, and that excessive indulgence at all times was esteemed criminal.

Ee 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 providence of God was a juatir fication 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 pale 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 re- *521 slraint, by enactments for that 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 Singsing 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-pervading magnitude, and that all ages and communities have set upon it thé seal .of disapprobation.

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 time's esteemed legal restraint as indispensable to the public welfare.

Suppose, then, that the law of the State should be held unconstitutional, and she should be denied the power'to legislate upon the subject; what consequences would follow ?

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, tljen 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 persuasive. Tbe policy and duty of the federal and State 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.

It would be a-singular result, and. one to be deprecated, if, in giving construction to the constituti