inmates of the House of Correction constituted a majority, or at least a respectable minority, of the inhabitants.

What, then, is this thing called the police power, which, being reserved to the States by implication, can forbid absolutely and despotically traffic or commerce of any commodity. In the particular case, it is claimed over anything that can or may be used by the people improperly or universally produce disease, crime, etc. And what these are, the States are to be the judges. It is a power, not a right, to exclude anything whatever from crossing the boundary line of a State. If there was a power to determine the reasonableness of the prohibition vested in any court, such as exists in the case of the grant of the right to make by-laws, the difficulty would be lessened. And it seems strange that this has not been apparently even thought of as the solution of the problem.

The several solutions seem to be these: (1) There is no power in the States to legislate on the subject of foreign commerce or that between the States, and therefore they can prevent nothing passing. (2) The States reserve and possess the police power absolutely, and therefore can prevent anything passing.

As an abstraction the premises of the first is, I submit, absurd, and the second is quite incompatible with the existence of the Union. The law that determines whether a contract exists or can be proved, whether it relates to foreign commerce or inter-state commerce, is purely of State origin. The Statute of Frauds, for instance. The whole system we call the common law varies in each State, and is modified by their statutes, and in no other way, unless we look to the declarations of the courts.

The materials that are necessary to the existence of commerce of any kind certainly are within the legislative jurisdiction of the States; the creation of highways and the authorizing tolls for the use of them; nay, the existence of property in anything. To say these State laws are prohibited because they regulate commerce would be absurd. It is also quite plain that commerce might be much more than regulated under the pretense of exercising these powers; it might be prohibited. It would certainly be very unfortunate if the court could not see its way to deal with legislation that must affect commerce consistently with the power intended to be conferred on Congress, without branding everything that proceeds from the States. The trouble generally lies in selecting an utterance, as it is called, rather than ascertaining what the court decided. But to leave abstractions, which are very misleading, let us look at the issue, which is now distinctly raised by the claim,

that States possess the power to prohibit the introduction into their territorial limits of commodities that are intrinsically harmless. Thus far they have set up an excuse or pretense that the people of the State or some of them have such a hankering after the commodity that the State is incapable of preventing its abuse, and this power is claimed because the use that would be made of the commodities is injurious to the persons that do use them, and the community suffers from the effect; but they claim the right to determine this fact. Is not this a fair statement of the proposition? But I will select what Mr. Patterson says is a statement that cannot be bettered, quoting an utterance of Mr. Justice Harlan to prove my statement:

"But suppose the people of a State believe, upon reasonable grounds, that the general use of intoxicating liquors is dangerous to the public peace, the public health, and the public morals, what authority has Congress or the judiciary to review their judgment upon that subject, and compel them to submit to a condition of things which they regard as destructive to their happiness and the peace and good order of society? If, consistently with the Constitution of the United States, a State can protect her sound cattle by prohibiting altogether the introduction within her limits of diseased cattle, she ought not to be deemed disloyal to that Constitution when she seeks by similar legislation to protect her people and their homes against the introduction of articles which are, in good faith and not unreasonably, regarded by her citizens as 'laden with infection' more dangerous to the public than diseased cattle or than rags containing the germs of disease."

What does this really mean, when he asks what authority has Congress or the judiciary to reverse their judgment? Does he mean that the belief of the people or its bona fides is not inquirable into? Does he mean that the fact on which the belief rests is not inquirable into? If these are not to be inquired into, what is the meaning of his qualification of the legislative right of protecting the people and their homes against the "introduction of articles which are in good faith and not unreasonably regarded by her citizens as laden with infection more dangerous to the public than diseased cattle and rags containing the germs of disease"?

It would be difficult to find a better specimen of looseness and uncertainty in anything like an attempt to define a political power for judicial purposes. The moment it is admitted that the motive cannot be inquired into (the virtute cujas of pleading), it is a mere question of power, not of right. Right then appeals to the indi

vidual conscience only. But couple this with the oleomargarine case, and it is clear that all these qualifications are mere misleading rhetoric, and the right to suppress the useful, because the injurious can only thus be suppressed, is declared to rest wholly in the Legislature, and cannot be inquired into by the courts. Powell v. Pennsylvania, 127 U. S. 685. There was a dissent there, but by Field, J., only. It is, therefore, essential to the appreciation of the importance of the subject and of the decision that has caused so much comment, to understand that in respect of the right of the citizen as to what he shall eat or what he shall drink or wherewithal he shall be clothed, what amusements he may indulge in, what species of work he shall employ himself upon, the Legislatures are despotic. If they conceive it to be immoral to wear a garment made out of foreign wool, they may make it a capital offense to do so. It will not be a novelty in legislation. If they conceive that card-playing cannot be suppressed except by making it criminal to produce pasteboard, or material out of which pasteboard can be made, the judiciary cannot inquire into their motive or the reason or powers of the law. If they conceive that horseracing cannot be otherwise suppressed, they may require the slaughter of every horse, mare, or foal upon its entering within the limits of the State.

It would be difficult, certainly, to reconcile the exercise of this last instance of power with the unquestioned guaranty that Congress alone can make regulations concerning the mode in which the Camden County farmers are to convey their milk to their Philadelphia customers; but the point I wish to come to and to make quite evident is, first, that Mr. Patterson's melancholy conclusion, that inter-state and foreign commerce are chartered libertines as to all matters that are within the police powers, is incorrect. For Congress certainly may exercise such police powers as are necessary to regulate the commerce. For it is very difficult, if not impossible, to see how powers that are necessary to the existence of the thing to be regulated are not conferred by the grant of the power to regulate the thing, especially if there be no other governmental power anywhere. Secondly, Still more important than the correctness of Mr. Patterson's conclusion is the fact that if this claim of the State police power can be sanctioned, on what proper ground can he deny its right to forbid the transit through its territory of any article it deems fit to forbid. I can conceive of no proper mode of drawing from this logical net (it should be called a sein) articles intended for transit through or for delivery

without the State, that may be diverted during the transit to the stomachs of the citizens that want protection. The articles that are prohibited delivery are not subject to one of the objections that are the basis of the prohibition, without an illegal act after delivery, even if the use is illegal, which by a singular inconsistency it is not. Ownership and sale or gift are, I believe, illegal, all of which acts are harmless, the swallowing, which is the injurious act, is permitted by law without any restrictions. To prevent this legal act from being possible, the remedy is to exclude from the State the thing to be swallowed; and the choice of this remedy is purely for the Legislature, and whether they are correct or wrong as matter of fact in their reasons, no one can dispute.

Certainly it follows that the use of their territory for transit is within their power to withhold. And because it is so, the right to interfere with deliveries within the State is denied them. I suspect this is the real ground of the judgment that has been criticised. That Congress may legislate as to what may or may not be carried and on what terms, and that they may, if they see fit, prohibit the carriage and delivery of anything the State may forbid its citizens to own or use, is not likely to be disputed. It would be an absurdity almost too great even for judicial logic to land in the conclusion that, by the transfer of one element of sovereignty from the States to the Federal government, a commonplace power of sovereignty had been extinguished, being neither granted nor reserved. This is the conclusion of the article I have been commenting upon, and there is certainly something like it to be found in the discussions as to the money-making prerogative; but this was caused by the express regulation as to the States and the supposed failure to grant to the Federal government. Here it is conceded that everything respecting commerce that is not transferred by the regulating clause, remains with the State. How any power can be extinguished by this process is beyond my logic.

The result to my own mind is that no rational systematic exposition of this much-discussed commerce clause can ever be satisfactory that does not permit legislation by the States, even when affecting inter-state commerce, if the legislation is reasonable and consistent with the power of Congress. Taxing never can be and up to this time, it is only this that we have had to contend with, except in the New York case, and the judiciary are to determine this point as they determine the reasonableness of any exercise of an inferior legislative power, for, with all deference to the States, their power respecting foreign commerce is inferior to the national power. R. C. MCMURTRIE.

THE ORIGINAL PACKAGE DECISIONS have excited a general interest on such constitutional questions, the following list of authorities will be of assistance in studying the subject of interstate commerce law:

1819: Stugis v. Crowninshield, 4 Wheat. 122.

1820: Houston v. Moore, 5 Wheat. 1.

1821 Cohens v. Virginia, 6 Wheat. 264. 1823: Corfield v. Coryell, 4 Wash. 371. 1824: Gibbons v. Ogden, 9 Wheat. 1.

1827: Ogden v. Saunders, 12 Wheat. 213.

1829: Weston v. Charleston, 2 Peters 449; Willson v. Marsh Co., Id. 245.

1830: Harris v. Dennie, 3 Peters 302; Craig v. Missouri, 4 Id. 429.

1831: The Schooner Wave, 2 Paine 131; Cherokee Nation v. Georgia, 5 Peters 44; Crane v. Crane, Id. 190; Martin v. Acker, Blatchf. & Howland 279.

1832: Worcester v. Georgia, 6 Peters 575; Davis v. Packard, Id. 48.

1836: Hobert v. Drogan, 10 Peters 120; Crowell v. Randell, Id. 396.

1837: N. Y. v. Miln, 2 Paine 430, and 11 Peters 133; Livingston v. Story, 11 Peters 351.

1838 U. S. v. Coombs, 12 Peters 72; R. I. v. Mass., Id. 657, 722.

1840 Holmes v. Jennison, 14 Peters 540, 617.

1841 Groves v. Slaughter, 15 Peters 504. 1842 Prigg v. Penna., 16 Peters 655. 1843: The Chusan, 2 Story 455.

1845 Pollard v. Hagan, 3 How. 229.

1846: The James Thompson, Newb. 245; The British Prisoners, I Wood. & M. 68; U. S. v. The Bridge, Id. 401; Taylor v. Carpenter, 2 Id. 19.

1847: License Cases, 5 How. 578; Mfg. Co. v. Brown, 2 Wood. & M. 471.

1849 Passenger Cases, 7 How. 283.

1850: Nathan v. Louisiana, 8 How. 73; Phalen v. Virginia, Id. 163.

1851 Cooley v. Port Wardens, 12 How. 299; The State of Pennsylvania v. The Wheeling, etc., Bridge Co., Id. 518.

1852: Veazie v. Moore, 14 How. 568; The William Pope, Newb. 256.