but one of those who voted, and preferred to 463*] leave to the "Legislature the authority of making the prohibition, instead of thus inserting it absolutely in the fundamental law. It is submitted that, under the well established rule of this court, these decisions of the judicial tribunals of Mississippi are conclusive of the present controversy. No point is more authoritatively settled than that the construction given to the constitution and laws of a State, not conflicting with those of the Union, by the courts of the State, will be adopted by this court. Green v. Neale, 6 Peters, 295.

And how is it attempted to obviate this clear intention of the people of Mississippi, as derived from the plain letter of their constitution; from a comparison of this, with other language of that instrument; from a review of successive efforts made by them to effect this object; from that interpretation of their language which is consistent with the just and settled rules of construction; from the direct and authoritative exposition given by their own courts of justice? How is it attempted to obviate this intention, thus expressed?

It has been done, by saying that the Legislature of Mississippi regarded the clause of the constitution, in 1833, as merely permissive to the Legislature; and that Governor Lynch, in 1837, so regarded it.

If this were so, would it be an answer? It was evidently the wish of the Legislature to retain a power that the people had taken from them; they tried to obtain it by an amendment of the constitution; it is natural they should seek it, that mode failing, by ingenious interpretation. If it were so, their construction could avail nothing against that derived from the rules already stated. But it is not so. The Act of March, 1833, shows the Legislature thought an amendment of the constitution necessary to prevent the immediate and positive operation of the prohibitory clause. The Act of December, 1833, does not relate to those who imported slaves for sale, in violation of the law, but to transient merchants, or persons selling their own slaves.

As to the recommendations of Governor Lynch, they were to give effect to the provision by adequate penalties. The sales might be made for cash, the payment on delivery; in such case, all the evils he adverts to would occur, and the contract be completed, notwithstanding the prohibition. So, too, in cases 464*] where the person seeking to discharge himself was he who received the slaves; a party to the illegal transaction; the courts would not interfere on his behalf; and thus the provision of the constitution would be violated. Cases like the present, where the defendant is ignorant of the transaction, and, from that circumstance could readily receive the aid of a court, might be expected seldom to occur.

These objections, therefore, if they could have weight against such arguments as those presented to sustain the constitution of Mississippi, are not, in reality, when properly examined, objections to our construction of that instrument.

It may, then, be confidently said that, after the 1st of May, 1833, it was unlawful, by the constitution of Mississippi, to introduce slaves into that State for sale, or as merchandise.

Was such a provision in that constitution a legal one in itself?

A constitution is the will, deliberately expressed, of the whole people of a State; the most binding and solemn compact; original and organic; restrained in nothing which the people may desire to introduce, unless so restrained by the previous compact of the same people with their fellow-citizens of the rest of the Union.

If, then, it has been shown, that the people of Mississippi did prohibit the importation of slaves, as merchandise, after 1st May, 1833, that prohibition is binding and operative, unless it be contrary to the Constitution of the United States.

Is it so?

It is said that it is, because the Constitution gives to Congress the power "to regulate commerce with foreign nations, among the several States, and with the Indian tribes." Is the prohibition to import slaves into Mississippi, for sale within that State, such a regulation of commerce among the several States as Congress had the sole authority to make? It is submitted

1. That it is not a regulation of commerce among the States.

2. That if it were, it is one excepted from this power of Congress, and remains in the State. 3. That if it were vested in Congress, it may also be exercised by the State.

I. The regulation of commerce among the several States has been defined with such great simplicity, distinctness, and precision by Chief *Justice Marshall, that it is useless to [*465 speculate upon it for ourselves. He says, in the case of Gibbons v. Ogden, 9 Wheaton, 194, "it is not intended to say that these words 'to regulate commerce among the several States' comprehend that commerce which is completely internal, which is carried on between man and man in a State, or between different parts of the same State, and which does not extend to or affect other States. Such a power would be inconvenient, and is certainly unnecessary. Comprehensive as the word 'among' is, it may very properly be restricted to that commerce which concerns more States than one. The phrase is not one which would probably have been selected to indicate the completely interior traffic of a State, because it is not an apt phrase for that purpose; and the enumeration of the particular classes of commerce to which the power was to be extended would not have been made had the intention been to extend the power to every description. The enumeration presupposes something not enumerated; and that something, if we regard the language or subject of the sentence, must be the exclusively internal commerce of a State. The genius and character of the whole government seem to be that its action is to be applied to all the external concerns of the nation, and to those internal concerns which affect the States generally; but not to those which are completely within particular State, which do not affect other States, and with which it is not necessary to interfere for the purpose of executing some of the general powers of the government. The completely internal commerce of a State, then, may be considered as reserved for the State itself."

Is it possible to conceive a case falling more clearly within this definition? Is not this a commerce carried on between man and man in the State of Mississippi? Is it not a matter that does not affect other States? Is it necessary for the general government to interfere for the purpose of executing its powers? It is the importation of a slave: the sale of a slave. His being a slave; his being a subject of sale, is a matter depending solely on the State of Mississippi. It is by the local law alone that the subject matter of importation and sale is created. No other State is affected by its existence or non-existence. It is not necessary for any powers of the general government that it should 466*] be able to enforce this sale or this importation, unless it has the power not to reg ulate but to create articles of commerce. It does not differ, in principle, from the very common prohibition against the introduction of lottery tickets, or of bank notes under a certain denomination. Whether these are or are not articles passing in trade in a State, depends on her own laws. Could Congress, because they may be articles of traffic, deprive a State of her right to admit or exclude them? Suppose Mississippi had said no negroes shall be sold as slaves within her limits, can Congress interfere to abolish this on the ground that it affects other States? That will not be contended; yet if it cannot, then its interference to regulate the disposition of them-the manner in which they are to be dealt with, is assuming a power over a subject matter which the States themselves can abolish or create.

To avoid the force of this inference, a distinction has been taken in regard to the importation of slaves into the slave-holding and nonslave-holding States. But where is this distinction found? Certainly not in the letter of the Constitution; certainly not in its spirit. It is admitted that the importation of a slave into New York, where the sale as a slave and his detention in slavery are forbidden, may be prohibited; yet it is urged that the importation of a slave into Mississippi, where his sale, when so brought, is forbidden, cannot be prohibited. The distinction is not to be sustained. Commerce is the traffic in articles which are the subjects of traffic, either in the place from which they are brought, or the place to which they are taken. If the place from which they are brought is the test, then is every slave taken from Virginia to New York an article of commerce, and any regulation by the latter in regard to him is a violation of the Constitution. If the place into which they are imported determines their character, then is the privilege of the slave State, in regard to their disposition as matters of commerce, as strictly constitutional and complete as that of the free States. On the principles, then, laid down in the case of Gibbons v. Ogden, this is clearly a matter of commerce, depending on the State laws, affecting the State laws, and not necessary for any of the purposes of the general government. But it is said that, being an importation of an article, it necessarily presumes intercourse, which is commerce. To that it is answered, 467*] *that mere intercourse, even between different States, is not commerce; it must be intercourse connected with, or auxiliary to trade. Such is the evident meaning of the court in the

case of Brown v. The State of Maryland. But here this necessary ingredient is prohibited; the article cannot be sold. There is, therefore, no object upon which commercial regulation can act.

In the only remaining case where this constitutional clause was discussed, New York v. Milne, 11 Peters, 135, is there a word found which sustains the idea that this power authorized Congress to interfere with the traffic in slaves among the States, or the regulation in regard to it? The reverse. That case most ably examines the decisions of Gibbons v. Ogden and Brown v. The State of Maryland. It shows that the former extended only to the regulation of navigation, under an act of Congress, as a branch of commerce; the latter involved the right of the State to interfere, by a tax, with the taxing power of Congress. But farther than this, it (11 Peters, 136) sustains the very position now submitted; that the regulation of commerce is intended to apply to "goods," to the articles that are strictly merchandise.

Take, then, the construction given by this court to this clause, and it is evident that Congress cannot make commercial regulations about anything that is not in itself commercial property, and so recognized by the State.

Now, the State of Mississippi does not recognize these as property subject to sale-subject to commerce when thus imported. It seems it does not recognize them as such property at all; they are at the disposition of the Legislature, under the Act of 1822; but at all events they are property liable to commercial traffic when so introduced. In the case of The State of Mississippi v. Jones, Walker, 83, the law of that State was established clearly that they were the creatures only of positive law, not property by any other right.

II. But suppose that slaves are to be so regarded, still, as a regulation in regard to property brought into the State, these prohibitory enactments are authorized.

This court, in the cases of Gibbons v. Ogden and Brown v. The State of Maryland, had laid down the rule that a State might do whatever was necessary to protect itself internally: its quarantine, *police, pilot laws, etc., all [*468 relating to and connected with navigation and commerce. But in the case of New York v. Milne, 11 Peters, 139, this principle was more broadly and fully enunciated. After declaring that the authority of a State is "complete, unqualified and conclusive" in relation to those powers which refer to merely municipal legislation, the court observe that "every law comes within this description which concerns the welfare of the whole people of a State, or any individual within it; whether it relates to their rights or their duties; whether it respects them as men or as citizens of the State." This view clearly embraces the present case. The evils against which the people of Mississippi desired to protect themselves have been fully pointed out. Their determination to stop the introduction of slaves without corresponding emigration; to guard against the admission of the vicious through the deceptions of negro traders, were evidently objects of proper municipal regula. tion, equally concerning the welfare of the whole people of the State, and that of many an individual within it.

case?

III. But suppose this to be a commercial regulation not of the class above referred to, but one which Congress might make, still is the power of Congress exclusive or concurrent? It is not meant to contest the general principle assumed by the counsel of the defendant, that, in matters clearly within the scope of those powers and duties pertaining to the general government, it is exclusive; but is this such a In matters which are legitimate objects of legislation by the States, they may exercise a power as well as the general government. Each may levy taxes; each may regulate passengers coming in foreign vessels; each may improve navigable streams. Are not the powers now claimed by the State of Mississippi of this class? Even if we admit Congress might regulate them, could not that State also do so? And if not, to what serious evils might it lead! Congress has never yet acted on the subject; yet who can deny that it is a subject that must have been acted on? It is submitted, therefore, on all these grounds, that this is not a regulation of "commerce among the States," according to the meaning of the Constitution; but if it is, it is one that the States themselves have also a right to make.

Nor should we forget that this is a settled construction given from the earliest days of the government by Congress, by the States, and 469*] *by the courts of the United States and the States. Congress, when it admitted the States of Alabama, Illinois, Missouri, Arkansas, as well as Mississippi, approved of constitutions having similar provisions in them. In nearly every State of the Union laws of the same character have been enacted without hesitation, even from the days of the Revolution. They exist in the free States, as well as the slave States, for the principle is the same. If the right to forbid importation for sale does not exist, how can it be exercised in a free State more than in a slave State? The decisions of courts of the United States and of numerous States of the Union, recognizing the validity of laws which depend on this principle, have been already referred to so fully that it is unnecessary to dwell further upon them. Now, it is respectfully asked, can this court undertake for the first time to give a construction to the Constitution which will set at naught these constitutional provisions of the States, these laws, and this uninterrupted series of judgments of judicial tribunals? Yet it is in vain to disguise it that this must be the effect of a decision in favor of the defendant on this point of the case. It would indeed be, as was said, to sacrifice a hecatomb of laws. And for what purposewhat good? Have not these regulations been safe, just, and prudent? Are they not conformed to the feelings, opinions, and laws of the several States, whether permitting or prohibiting slavery? Would these be better suited by what Congress would do? On the contrary, would not an attempt on the part of Congress, now for the first time after a lapse of fifty years, exclusively to do that which the States have always done themselves, strike a blow at the laws and institutions of the States? Would the free States readily submit, or would slave States? If such fate is reserved for the constitutions, laws, and judicial decisions of the States; if they are all to be broken down, and

a new power of regulation awaits them, who can tell what may be its effect on the institutions and power of the Union itself?

On all these grounds, therefore, it is submitted that this prohibitory clause in the constitution of Mississippi is not only clearly ex pressed, but is in itself a legal and constitutional provision.

The next question is: was the conduct of the plaintiff below intentionally at variance with this provision of the fundamental law? That it was is evident when we take the [*470 whole transaction together. The sale of the imported negroes formed necessarily a part of the transaction, without which the violation of the law was not complete. It will be seen that the introduction of slaves into Mississippi from other States is not forbidden. They may be brought there by persons coming to the State for a limited period, or intending to remain there permanently. It is only when brought there to be sold that the constitution is violated. The evidence of this object-the only violation of the law-is the sale, or the offer to sell. Until that moment the crime is res infecta, an unaccomplished act; when the slave becomes the subject of a bargain, then it is that the introduction as merchandise is apparent, and the violation of the law complete. Whether there might not be an act indicating the intention and purpose for which the slaves were introduced, other than the contract for their sale, it is not necessary to discuss; when the sale follows it forms part of the illegal transaction; characterizes the introduction; shows its improper character; and so taints the whole bargain that, to consummate it through the agency of a court, would in the language of Chief Justice Wilmot, "pollute the pure fountain of justice.”

Here, then, is a solemn provision of the constitution of Mississippi, and a transaction of the defendant in error yet unfinished, which is in direct violation of it. He now seeks to compel the completion of this transaction, to accomplish the business for his own benefit, and in the face of the law of Mississippi, at the expense of third persons, and through the agency of this court. Can he do so? That he cannot is a principle established by the laws of every civilized country. By the Roman Law (1 Pothier on Ob. 25; Story's Con. of laws, 204) it was well settled that where the foundation of a contract or a promise was an act repugnant to justice, good faith, or morals, the promise could not be enforced in a court of justice. By the common law, as settled by repeated decisions of English courts, wherever a transaction contravenes the general policy or the express stipulations of the law, no form of expression is permitted to veil its inherent impropriety; the real object of each party to the contract will be examined, and if either is found to be aiming at that which is repugnant to principles established for the general benefit of *society, the courts of justice will re- [*471 pudiate it, however artfully the arrangements have been made to accomplish the desired end. Where both have been equally guilty, the courts have with equal pertinacity refused to interfere, though that refusal has indirectly benefited one of the guilty parties. Casuists in the law of nature and of conscience have speculated on the obligations which bind those

man. This court refused to interfere, and declared that where a loss was the result of a violation of the laws the parties must be left to settle the matter between themselves. In the case of Craig v. The State of Missouri, 4 Peters, 436, Craig purchased of the State cer474*] tain loan office certificates, emitted by the State, under a general State law, but which were, in fact, bills of credit. For this purchase, he gave a note to the State, and this suit was brought to recover the amount. This court refused to sustain the demand, because the issue of the certificates was a violation of the Constitution. It will thus be seen that, by a uniform series of accordant decisions, the common law courts of England, of the States, and of the Union, have irrevocably fixed the great rule in regard to a remedy for violated contracts, that no plaintiff will receive the aid of the court, in prosecuting his claim where it is founded on a violation of the law, or an act contrary to public policy. This rule asserted, more than a century ago, in the comprehensive language of Holt, when he said that "every contract made for or about anything that is prohibited by a statute, is void," receives in our own day its final stamp from one of as clear honesty, and of broader genius, when he affirmed, and maintained it, though the plaintiff and the contractor was a sovereign State.

In no case cited or known has this rule been infringed; never has the plaintiff been permitted to profit immediately or remotely by the consequences of his violation of the law. In some of the instances adverted to nice distinctions have been drawn to prevent a defendant, who was himself a participator, from escaping from his share of the loss; but even then, the plaintiff has been required to satisfy the court that the actual matter of contract was but remotely or indirectly connected with the illegal transaction, and that, if acquainted with, he was yet free from participation in it.

In the present case, the rule applies with full force, and is met by all the facts which are necessary to its complete recognition. The party who seeks the benefit of this violation of the constitution of Mississippi is he who violated it; the contract, if fulfilled, gives him a reward, in an immense sum of money, for the successful accomplishment of that violation; it is done at the expense of those who were innocently made, to some extent, parties, if not to the offense, yet to the transaction incident to it; the contract, the bargain, the sale, is part of the illegal act, since, without that, there was but an imperfect violation of the law, confined to the breast and intention of the plaintiff; it 475*] is, in no sense, a new or separate proceeding; it is like the purchase of the bills of credit, after they had been created by a law of Missouri; like the sale of the silk goods, after they had been smuggled; like the agreement to divide the proceeds of the capture with those who were not entitled to it; like the bargain for the bricks made contrary to the provisions of the statute.

If any doubt could remair whether or not the illegal act, the violation of the constitution of Mississippi was, in fact, the consideration of this contract-this promise on the part of the maker of the note, that doubt would be removed by applying to it the test of Lord Mansfield,

and reversing the application and the parties to the contract. If it be not a violation of the prohibition to enforce the payment of the sum for which these slaves were sold, it would be law. ful to have enforced their delivery to the purchaser, had the importer stopped short in his course of illegal proceeding, and refused to con summate it by completing the sale. Who will assert this? Who will suggest that any court would lend its power for such a purpose? Yet if each side of the contract has, as it must have, equal weight, we must admit the propriety of enforcing the delivery of the slaves, or we must refuse to aid in compelling the payment of the sum for which they were sold.

But suppose that the actual violation of the law ended with the introduction of the slaves, and that the act of selling them did not fall within the letter of its prohibition. Is it necessary that the improper act should be a direct and literal violation of a statutory provision? Certainly not. It was not so in any of the cases cited. It was not so in that of Bartle v. Coleman, decided by this court. It is not held to be so in the annunciation of the principle anywhere. If the act be "against the policy of justice," it vitiates the bargain as fully as if it is contrary to the letter of the law. In Jones v. Random, 1 Cowper, 39, it was admitted that the contract was against no law, but against morality and sound principles, and it was held to give no ground for recovery. In Leerot v. Riley, 3 Durn. & East, 24, where there was no violation of the bankrupt law, but an act infringing its spirits, the same rule was laid down. In Hunt v. Knickerbacker, 5 Johns. 333, it was held that when any contract will lead to a violation of law in its execution, it is void; and, in Sydenberg v. Charles, 4 Serg. & Rawle, [*476 173, the court said no form of contract could prevent an examination of its real nature.

To argue that to sell slaves, known to be introduced in direct violation of the constitution of a State, and especially to permit that sale to be made by the person so introducing them, is "against the policy" of that constitution, seems to be a work of supererogation. What can better indicate the general policy of a State, in regard to such an act, than the positive prohibition of the previous step necessary for its accomplishment? What could show the policy of the Constitution of the United States, in regard to selling bills of credit by a State, more clearly than the prohibition to issue them? Would this court, then-even if the sale of these slaves were not prohibited-would it interpose to protect an act to secure a profit from an act which is indisputably at variance with the settled and avowed policy of the State, and known to be so by the plaintiff below when he made his bargain?

In conclusion, then, it is submitted, that the judgment of the court below was wrong; because the transaction, which formed the consideration of the note sued on, was contrary to the letter of the constitution of Mississippi, and contrary to the policy of its constitution and legal provisions; and because, in such a case, courts of justice will not interfere to enforce the contract, for one party or the other.

Mr. Jones, for the defendant in error: This case is of much importance in principle. and it is also so, because of the very large