upon a petition in writing, as he shall elect. license shall not protect any such person from | tion made orally by himself or his counsel, or the penalties provided in this chapter for exercising his employment in any other place than that which is specified in the license. "Sec. 25. If the selectmen of any town shall unreasonably neglect or refuse to make and de"Sec. 18. The mayor and aldermen of the liver such a certificate, either for the original city of Boston may license, for the said city, as granting or the renewal of a license, the person many persons to be common victuallers as they aggrieved thereby may apply for a license to shall think the public good may require; and the commissioners, first giving twenty-four every such license shall contain such a specifi- hours' notice to a majority of the said selectcation or description, as is mentioned in the men of his intended application, so that they preceding section, of the street or other place, may appear, if they see fit, to object thereto; and of the building where the licensed person and if on such application it shall appear that shall exercise his employment; and the license the said selectmen did unreasonably neglect or shall not protect him from the penalties pro-refuse to give the said certificate, and that the vided in this chapter for exercising it in any public good requires that the license should be other place. granted, the commissioners may grant the same. "Sec. 19. All licenses to any innholder, retailer, or common victualler shall expire on the first day of April in each year; but any 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. "Sec. 26. All the fines imposed by this chapter may be recovered by indictment, to the use of the county where the offense is committed; and when the fine does not exceed twenty dollars, the offense 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. "Sec. 27. When any person shall be convicted under the provisions of this chapter, and shall fail to pay the fine awarded against him, he may be imprisoned in the common jail for a time not exceeding ninety days, at the discretion of the court or justice before whom the trial may be had. "Sec. 20. Every person, who shall be licensed as before provided in this chapter, shall pay therefor to the clerk of the city of Boston, the clerk of the Court of Common Pleas for the County of Suffolk, or to the clerk of the commissioners of the respective counties so licensing said person, one dollar, which shall be paid "Sec. 28. All prosecutions, under the proby said clerks to the treasurers of their respect-visions of this chapter, for offenses committed ive counties for the use of said counties; and such persons shall also pay twenty cents to the use of the said clerks respectively; and no other fee or excise whatever shall be taken from any person applying for or receiving a license under the provisions of this chapter. "Sec. 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. "Sec. 22. The clerk of the 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 innholders or retailers the preceding year. 509*] *"Sec. 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 "Sec. 24. Any person producing such certificate of the selectmen, shall be heard, and his application decided upon, either on a mo in the city of Boston (excepting where the fine exceeds twenty dollars), may be heard and determined in the Police Court, subject to the right of appeal to the Municipal Court; 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. "Sec. 29. Any person, licensed under the provisions of this chapter, who shall have been twice before convicted of a breach of any of the said provisions, shall thereupon, in addition to the penalties *before provided, be [*510 liable to a further punishment, by imprisonment in the common jail, for a time not exceeding ninety days, at the discretion of the court before whom the trial may be had." Acts of 1837, Chapter 242. "An Act concerning Licensed Houses, and the "Sec. 1. No licensed innholder or other person, shall sell any intoxicating liquor on Sunday, on pain of forfeiting twenty dollars for each offense, 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. "Sec. 2. Any license to an 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 be required for such license: Provided, that nothing contained in this act, or in the fortyseventh chapter of the Revised Statutes, shall be so construed as to require the county com missioners to grant any licenses, when in their | with, the provisions of the Constitution, treaopinion the public good does not require them to be granted. "Sec. 3. Any person who shall have been licensed according to the provisions of the forty-seventh chapter of the Revised Statutes, or of this act, 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 offense, be adjudged to have forfeited his license. "Sec. 4. Any person who shall have been three times convicted of a breach of this act, or of the forty-seventh chapter of the 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. "Sec. 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 grant 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." [Approved by the Governor, April 20, 1837.] 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: ties, 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 the writ of error thus issued, the case came up to this court. It was argued in January, 1845, by Mr. Choate and Mr. Webster for the plaintiff in error, and Mr. Huntington for the State. Being ordered to be re-argued, it was now argued by Mr. Webster alone for the plaintiff in error, and Mr. Davis for the State. Mr. Webster opened the case. The best mode of presenting his views of the points which arose will be, to repeat the brief filed by himself and Mr. Choate in the former argument. It was as follows: The plaintiff in error, a citizen of the United States, living in Massachusetts, was convicted, under the Revised Statutes of that State, ch. 47, and the Statute of that State of 1837, ch. 242, of sales of foreign spirits made in 1841 and 1842, without a license. He seeks to reverse the judgment, upon the general ground that those statutes are repugnant to constitutional acts of Congress, and to the Constitution of the United States; and contends— *1st. That they prohibit even the [*512 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 are 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 one; and hereunder he submits the following analysis of his arguments: "2. It appeared upon the trial that some of the sales charged in the indictment were of foreign liquors, and his honor directed the jury that the license law of this Commonwealth ap- 1st. The statutes of Massachusetts are not plied as well to imported spirits as to domestic, auxiliary to, co-operative with, and merely regand that this Commonwealth could constitu-ulative of, the legislation of Congress, which tionally control the sale of foreign spirits by admits foreign spirits to importation under preretail, and that said law is not inconsistent with scribed rates of duty, but are antagonistical to Constitution or revenue laws of the United and in contravention of it, since they seek to States. To this ruling also the defendant ex-diminish and discourage the sales of imported cepts." 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. 4 Mr. Hallett, the counsel for Thurlow, then applied for, and obtained, 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 licensed houses and the sale of intoxicating liquors, and especially the acts which are hereto appended and set out as part of the record in the said cause, upon which said judgment was founded, and also the opinion and judgment of 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 Thurlow, are repugnant to, and inconsistent spirits to a greater degree than the legislation of Congress seeks to do it, upon the ground that the policy of Congress in this behalf is an erroneous policy. To maintain this, the object and operation of the Massachusetts statutes, and 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 use so large a quantity as twenty-eight gallons to 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 sale 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 | have access with it to the consuming capacity trade. of the country. 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 it is not required to grant them. The grounds on which Congress legislate, in passing such an act, and the just expectations and reasonings of the importer, prove this. The interception of the article in the hands of the first buyer, on its way to a market, excludes it from market, and shuts the importer from the country as really as if he were pro For the last six years none have been granted in the county of the plaintiff's residence, con-hibited to sell. taining more than one hundred thousand inhabitants. This withholding of licenses is no fraud on the Massachusetts statutes, but in perfect conformity with them. In conformity with the law, then, all sales of spirits for use may be totally prohibited in Massachusetts. These laws design to do just what can be legally, and without defrauding them, done under them. 2. Regarded as Congressional legislation, an act authorizing importations of spirits is a legislative determination that the foreign article may properly, and shall, enter into the consumption of 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 consumption of the country, and be sold in [*514 the domestic market, and to what extent; and The design, then, to restrain all sales of spirits for use; and they do this upon a general principle of policy, to wit: that such sales, for such purpose, by whomsoever made, are a pub-it exercises this power by an act laying duties. lic evil. 513*] *The difference, therefore, between them and all laws of mere policy, of quarantine, health, horbors, storage of gunpowder, and the like, is, that those laws are auxiliary to, in aid and furtherance of, co-operative 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 as to secure | the largest amount of traffic in the most expedient and prudent manner; but they mean, substantially and effectually, to put an end to the traffic. The plaintiff in error, therefore, will discuss these 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, 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. 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, co-operative, and regulative, securing proper persons by whom the traffic shall be conducted, but not discountenancing and discouraging the traffic itself. That power these statutes tran scend. 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'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 law 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 the event of collision, the law of the These authorize importations in casks of fif-State must yield to the law of Congress, conteen 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, 12 Wheat. 447, what 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 prohibition would totally defeat the license itself. The license is a license to carry the article to market, to trade in it, to stitutionally passed. New York v. Miln, 11 Peters, 102; Commonwealth v. 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 v. Hunter, 1 Wheat. 304; Cohens v. Virginia, 6 Wheat. 384; Prigg v. Pennsylvania, 16 Peters, 539. 5. The commerce which Congress may regulate. is something more than traffic. It is every species of commercial intercourse be 13. The counsel for the Commonwealth of tween the United States and foreign nations, and among the several States. "These words Massachusetts admits that the law complained [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 v. Ogden, 9 Wheat. 189, 193, 194. of becomes prohibitory against this description 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. 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 14. The laws of Congress make no distinccommerce among the States. The internal tion between commerce in imported wines commerce on which a State can act, independ- and spirits and other foreign merchandise. A 515*] ent *of a law of Congress affecting recognition of the power of a State to exclude the same, must be trade, or dealing in articles the first from its markets, whenever public 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 unlawful legislation, and collision of a State law with a law of the United States. 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 Is. 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-punishes all who sell without license, and coners 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. fers 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. 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 20. The operation of the law of Massachuconstitutional though its operation may be un-setts on foreign wines and spirits deprives imconstitutional, 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 and contemplates collision with a law of the United States, the former is invalid, and must yield whenever the collision arises. 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. 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. 22. The counsel on the other side further argues, that the State has a right to deny this Then followed the declaratory Act of 1837, commerce, whenever her citizens do not wish ch. 242, that the commissioners might withto deal in it. But if they do not desire to pur-hold all licenses in their discretion. chase, 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. 24. Now, Congress, by law and by treaties, authorizes foreign commerce with the States in wines and spirits. By the treaty of indemnity with France, in 1832, the wines of France were "admitted to consumption in the markets of the United States." The law of Massachusetts shuts her markets against the fair and just operation of these laws and treaties of the United 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. 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. 47 of Rev. Stat. and chap. 242 of 1837. Commonwealth v. Churchill, 2 Metcalf, 118. Since then no licenses have been granted. The plaintiff's first sale in the case at bar was in May, 1841, and this case has been brought up on writ of error as soon as the laws of Massachusetts and the decisions of her highest court have established prohibition as the law of that 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 healthing 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 manufacture by her citizens of 5,177,910 gallons of domestic spirits; which is one eighth part of the whole product of the United States in spirits distilled from molasses and grain. wines and spirits to be one fourteenth part of all the revenue, the States can cut that off, if this legislation is valid; and, 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 good faith perform any such reciprocal engagement. 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 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. |