does not apply to goods imported and in the hands of the retail trader. In connection with this subject it may be further observed, that by the constitution of the United States, "no state shall, without the consent of Congress, lay any imposts, or duties on imports or exports, except what may be absolutely necessary for executing its inspection laws; and all such laws shall be subject to the revision and control of Congress." (d) Inspection laws are not, strictly speaking, regulations of commerce. Their object is to improve the quality of articles produced by the labor of the country, and to fit them for exportation or for domestic These laws act upon the subject before it becomes an article of commerce. Inspection laws, quarantine laws, and health laws, as well as laws for regulating the internal commerce of a state, are component parts of the immense mass of residuary state legislation, and over which Congress has no direct power, though it may be controlled when it directly interferes with their ac

use.

prohibit the importer from selling the imported article in bulk, for the right to sell is inseparably connected with the law permitting importation. The act of Pennsylvania, on which the decision in S. & R. was founded, was unexceptionable as it originally stood, without the supplementary amendment; for it contained an exception in favor of importers of goods, who sold them in the original bulk or package in which they were imported.5

(d) Constitution, art. 1, sec. 10. By act of Congress of 27th February, 1801, c. 83, the assent of Congress was declared to an act of the legislature of Maryland, appointing a health officer for the port of Baltimore, so far as to enable the state to collect a duty of one per cent per ton on all vessels coming into the district of Baltimore from a foreign voyage, for the purpose intended in the act. This act of Congress is evidence

of the restricted sense given to the clause in the constitution cited in the text.

3 An act of Pennsylvania, requiring vessels to take a pilot, under a penalty, held to be constitutional. Cooley v. Board of Wardens, 12 How. U. S. 299. Tonnage duties cannot, however, be in any wise laid by a state. Alexander v. Wilmington R. R. Co. 3 Strobh. 594.

In Padelford v. Mayor, &c., 14 Geo. 438, it is held that an ordinance imposing a tax on the "gross amount of the sales of merchandise," does not conflict with the clause of the constitution which prohibits states to lay imposts or duties on imports. Therefore the tax was lawfully levied upon the price of imported goods, sold by the importers in the original form.

5 A tax, imposed by a state upon all money or exchange brokers, is not void for repugnance to the constitutional power of Congress to regulate commerce. Nathan v. Louisiana, 8 How. U. S. 73. Nor is a tax void, which is exacted from the agents of foreign insurance companies. People v. Thurber, 13 Ill. 554. Nor is a state law, laying a pro rata tax upon the sum received by any person, not domiciliated in the state, nor being a citizen of any state or territory of the Union, as heir, donee, or legatee, of any person deceased. Mager v. Grima, 8 How. U. S. 490.

knowledged powers. (e) It has been held, (f) that if Congress, in the execution of the power to regulate commerce, should pass a

(e) Marshall, Ch. J., in Gibbons v. Ogden, 9 Wheaton, 203. In the case of The City of New York v. Miln, 11 Peters U. S. 102, it was decided, that a law of New York, of February, 1824, requiring, under a penalty, the master of every vessel from any port out of the state to report in writing, within twenty-four hours after his arrival, the names, ages, and last legal settlement of the passengers, and that the master or owners should give bond with sureties to indemnify the city against the future charges of passengers who were not citizens, was not a regulation of commerce, but of police, and was a constitutional and valid law. The case received a very elaborate discussion; but it is rather difficult, as I apprehend, to exempt the New York law from the character of a regulation of commerce, or to withdraw the case out of the reach of the former doctrines of the court, that the power to regulate commerce with foreign nations is, and necessarily must be, exclusive in the government of the United States. In pursuance of the principle of this last decision, it was held, in Norris v. City of Boston, 4 Metcalf, 282, that a state law prohibiting the landing of alien passengers, until the owner, master, or consignee of the vessel paid two dollars for each passenger, for the support of foreign paupers, was not repugnant to the constitution of the United States. It was a regulation of municipal police, and not of commerce. So, in the case of Worsley v. Second Municipality of N. O., 9 Rob. (Louis.) 324, it has been adjudged, that an ordinance of the municipality of New Orleans, imposing a wharfage on all packages landed in or shipped from the limits of the same, was valid, and not repugnant to the constitution of the United States. The constitution of the United States never intended to authorize Congress to interfere with the laws of the states in relation to wharves and other instruments of trade, and in the preservation of harbors, &c. A contribution to defray the expense of constructing bridges or causeways, or removing obstructions in watercourses, and a retribution for this expense, to be paid by those who are benefited, are not an impost, tax, or duty.

Again, in the case of Howell v. The State of Maryland, before the Court of Appeals, in December, 1845, 3 Gill, 14, it was decided, that a state tax on the interest in all ships or other vessels, whether in or out of port, owned by persons resident of the state, was a valid tax, and not protected by the act of Congress licensing vessels, nor repugnant to the constitution or laws of the United States.7

(ƒ) Wilson v. The Black-bird Creek Marsh Company, 2 Peters U. S. 245. Thompson, J., 11 Peters U. S. 149, 150, S. P.

6 In virtue of its police power, a state may make requirements in respect to navigation within the state, additional to those contained in an act of Congress relating to the coasting trade; and the state law is paramount in authority, if it do not conflict with the constitution or any law of the United States. Fitch v. Livingston, 4 Sandf. 492. Port laws are constitutional as an exercise of mere police power. Wardens of N. O. v. Ship M. J. Ward, 14 La. Ann. 289.

7 The laws of New York, (2 Rev. St. Part I. ch. 14, title 4, sec. 7, p. 445, and Laws of 1844, ch. 316,) authorized the health commissioner to collect from the master of every vessel arriving in the port of New York, $1.50 for the master himself, $2 for every cabin passenger, &c., and directed the money so collected to be appropriated to the Marine Hospital, and to the Society for the Reformation of Juvenile Delinquents, &c. A law of Massachusetts, of 1837, ch. 238, enacted that no alien passenger shall be allowed to land without the payment of $2, for the support of foreign paupers. The validity of these laws came in question before the Supreme Court in February,

statute controlling state legislation in erecting dams over small navigable creeks where the tide ebbs and flows, it would be valid and binding. But until Congress had actually exercised their power over the subject, the state legislation in that case was not considered as repugnant to the power in Congress in its dormant state to regulate commerce. It is admitted, however, (g) that the grant to Congress to regulate commerce on the navigable waters of the several states, contains no cession of territory, or of public or private property; and that the states may by law regulate the use of fisheries and oyster-beds within the territorial limits, though upon navigable waters, provided the free use of the waters for purposes of navigation and commercial intercourse be not interrupted. (h) 9

(g) Corfield v. Coryell, 4 Wash. C. C. 371.

(h) In the case of Groves v. Slaughter, 15 Peters U. S. 449, there was no opinion of the court on the question of the internal commerce of the states as to the slavetrade; but two of the judges (Ch. J. Taney and Mr. Justice McLean) declared their opinion to be, that the power to regulate traffic in slaves between the different states, resided in the states separately and exclusively; - that each had a right to decide for itself whether it would or would not allow slaves to be brought within its limits from another state, either for sale or otherwise, and to prescribe the manner and mode of their introduction, and the conditions; that the constitution did not consider slaves as merchandise, and that the action and regulation of the several states on this subject did not trench upon the power of Congress to regulate commerce "among the several states," and could not be controlled by it. It may not be amiss to observe, that in the above case of Groves v. Slaughter, it was held, that the clause in the constitution of the state of Mississippi, of 1832, declaring that the introduction

1849, in Smith v. Turner, and Norris v. City of Boston, and the laws were considered unconstitutional. The court held that they were regulations of commerce, and that such regulations were exclusively reserved to Congress. The chief justice and three judges dissented from the decision, the chief justice considering the laws as part of the pauper system of the state, and not in conflict with any treaty or law of the United States. 7 How. U. S. 283.

In the last cited cases, Mr. Justice Wayne remarked, that the case of New York v. Miln., 11 Peters U. S. 102, was erroneously reported as the decision of the court, and that three judges only out of the seven concurred in the opinion of Mr. Justice Thompson. See, also, The People v. Brooks, 4 Denio, 469.

8 States may authorize the construction of bridges over navigable waters within their limits, if their legislation do not conflict with the regulations of Congress. Commonwealth v. Prop. of New Bedford Bridge, 2 Gray, 339; Jolly v. Terre Haute Bridge Co. 6 McLean, 237; Columbus Ins. Co. v. Curtenius, Id. 209; Columbus Ins. Co. v. Peoria Bridge Co. Id. 70.

9 A law, regulating the use of oyster-beds within the territorial limits of a state, may declare and enforce the forfeiture of a vessel which violates its requirements, though the vessel were enrolled and licensed for the coasting trade under the laws of the United States. Smith v. State of Maryland, 18 How. U. S. 71.

Progress of

I have now finished the second general division of this the national ju- course of lectures, relating to the government and conrisprudence. stitutional jurisprudence of the United States. Though I have considered the subject in a spirit of free and liberal inquiry, as the series of decisions in the federal courts have been brought under examination, I have uniformly felt, and it has been my invariable disposition to inculcate, a strong sentiment of deference and respect for the judicial authorities of the Union.

No point or question of any moment touching the con*440 struction of the powers of the government, and which * has received an authoritative determination, has been intentionally omitted. There are several important constitutional questions which remain yet to be settled; but if we recur back to the judicial annals of the United States since the year 1800, we shall find that many of the most interesting discussions which had arisen, and which were of a nature to affect deeply the tranquillity of the nation, have auspiciously terminated.

The definition of direct taxes within the intendment of the constitution; the extent of the power of Congress to regulate the power to establish a uniform rule of naturalization, and uniform laws on the subject of bankruptcies; the power of Congress over the militia of the states; the power of exclusive legislation over districts and ceded places; the mass of implied powers incidental to the express powers of Congress; such as the power to institute and protect an incorporated bank, to lay a general and indefinite embargo, and to give to the United States, as a creditor, priority of payment, have all received elaborate discussion in the Supreme Court, and they have, to a certain extent, been ascertained and

of slaves into that state as merchandise or for sale, should be prohibited after the 1st of May, 1833, was not operative per se, so as to invalidate a contract of sale of a slave introduced in violation of the constitutional provision, and that it was only mandatory upon the state legislature, and required their action to give it effect. The decisions in the state courts of Mississippi were contrary, and they held, that the prohibition in the constitution was a declaration of a principle, and binding as a supreme law, without the addition of legislative sanction, and that a contract of sale of a slave in violation of it was void. This question was discussed in a masterly manner by Ch. J. Sharkey, in the case of Brien v. Williamson, 7 How. (Miss.) 14, decided in the High Court of Errors and Appeals of the State of Mississippi, in March, 1843, in favor of the construction and effect already given to the constitution of that state, by the state courts, and in opposition to that given in the case of Groves v. Slaughter. The case of Cotton v. Brien, 6 Rob. (Louis.) 115, is to the same effect as the decision in Mississippi.

defined by judicial decisions. So, also, the extent of the constitutional prohibitions upon the states not to pass ex post facto laws; and not to pass laws impairing the obligation of contracts; and not to impede or control by taxes, or grants, or any other exercise of power, the lawful authorities, or institutions, or rights and privileges depending on the constitution and laws of the United States, has been explored and declared, by a series of determinations, which have contributed, in an eminent degree, to secure and consolidate the Union, and to elevate the dignity and enlarge the influence of the national government.1

*

The power of the President to remove all executive officers in his sound discretion has been settled, not indeed judicially, but perhaps as effectually by the declared sense of the legislature, and the uniform acquiescence and practice of the government. The absolute and uncontrollable efficacy of the treaty-441 making power has also been definitively established, after a struggle against it on the part of the House of Representatives, which, at one time, threatened to disturb the very foundations of the constitution.

The comprehensive claims of the judicial power, as being coextensive with all cases that can arise under the constitution and laws and treaties of the Union, have, in several instances, been powerfully and successfully vindicated. The appellate jurisdiction of the Supreme Courts, over the judgments and decrees of the state courts, under certain circumstances, was defined with great accuracy and precision in the 25th section of the act of 1789, establishing the judicial courts; and the free and independent exercise of that jurisdiction, so essential to the maintenance of the authority and efficiency of the government of the United States, in criminal as well as in civil cases, has been hitherto happily sustained. The means of enforcing obedience, when not voluntarily rendered, to the decision of this appellate jurisdiction, have not been required to be practically applied; and therefore it is a question which the court has not thought it incumbent on

1 The clause of the constitution providing that "the citizens of each state shall be entitled to all the privileges and immunities of citizens of the several states," came under consideration in the New York Common Pleas, in the case of the Fire Department v. Noble, 3 E. D. Smith, 440. It was there held, that a statute of the state imposing a tax on insurance companies, not chartered by the state, but doing business within it, as a condition of the right of effecting insurances, was constitutional.