Wynhammer agt. The People.

The law of Rhode Island, under which another of these cases arose, contained a provision similar to that of the Massachusetts law, fixing the minimum quantity that might be sold without a license at ten gallons.

The law of New-Hampshire went still further, and prohibited all sales without a license. There was no provision in the law under which licenses, to any extent, could be procured as matter of right. The power of granting and refusing licenses was to be exercised in the discretion of the officers designated for that purpose.

It will be seen that absolute prohibition might result from the operation of this law. That this was the design of the law, and the effect of its operation in a great majority of cases, no one can doubt. That all of these laws contained unusually stringent restrictions upon the sale of liquor; that they seriously interrupted the enjoyment, and impaired the value of the right of sale, no one will deny; but whether the right, in the Ianguage of Justice STRONG, was even "essentially preserved" by the New-Hampshire law, might well be doubted. As was natural, these laws encountered sturdy opposition from the interests so seriously affected by them. They were subjected to the most searching judicial scrutiny, and their validity was affirmed by the supreme courts of the respective states.

The constitution of each of those states contained the same prohibition against depriving citizens of property without " due process of law," as is relied on in this case. And yet, it is a remarkable fact, that in all the discussions which these cases underwent in the state courts, this objection was not suggested. The question, as we have seen, which was argued in the supreme court of the United States was, whether those laws were in conflict with those of congress regulating commerce. The question now under consideration could not arise in that court, and for that reason the decided opinions of the chief justice and other members of the court, in favor of the right of the states. to prohibit entirely the domestic traffic in liquor, cannot be regarded as authority, in the strict sense of the term, on this point. But the construction given by that court to the state

Wynhammer agt. The People.

laws, (which, in their terms, comprehended all liquors,) limiting their application to the domestic trade, for the purpose of maintaining the validity of those laws, shows the high sense entertained by that court of the importance of preserving, in its utmost latitude, the power of the states to control, by restrictions or prohibitions, its domestic trade.

A legislative recognition of the same principle, equally significant, is found in the excise laws passed by congress in 1794 and 1813, each of which contained a proviso, that no license to sell liquor should be granted under the law, to any person who was prohibited from selling by the laws of any state.

Another instance of the exercise of this power of regulation, to the extent of absolute prohibition, is furnished by the embargo laws passed by congress in 1807, which prohibited all importation and exportation to or from any foreign country. These laws were, by their terms, unlimited as to the time of their duration, and were maintained in full force for nearly two years. It was objected to them that the constitutional power to regulate commerce, under which the law was passed, did not authorize congress to destroy commerce, as this act confessedly did. The question was raised, in the district court of the United States for the district of Massachusetts, in the case of The United States agt. The Brigantine William, (2 Hall's Law Journal, 253,) in which a libel was filed to enforce a forfeiture of the vessel, for being engaged in the exportation of merchandise in violation of those laws.

It was argued, in behalf of the claimant, that the acts of congress were utterly void; that there was not only an entire want of power in the constitution to prohibit commerce, but that the act was in direct violation of the grant of power to regulate, which necessarily implied the duty of preserving the thing to be regulated. The court held the law to be constitutional. DAVIS, district judge, in an elaborate opinion, examined the question in all its bearings. In discussing the questions as to the nature and extent of legislative power, and the restrictions upon it, which could be enforced by the judiciary, the learned judge said:

Wynhammer agt. The People.

"Affirmative provisions and express restrictions contained in the constitution are sufficiently definite to render decisions, probably in all cases, satisfactory; and the interference of the judiciary with the legislature, to use the language of the constitution, would be reduced to 'cases' easily to be understood, and in which the superior commanding will of the people, who established the instrument, would be clearly and peremptorily expressed. To extend the censorial power further, and especially to extend it to the degree contended for in the objections under consideration, would be found extremely difficult, if not impracticable in execution. To determine where the legitimate exercise of discretion ends and usurpation begins, would be a task most delicate and arduous. Before a court can determine whether a given act of congress, bearing relation to a power with which it is vested, be a legitimate exercise of that power or transcends it, the degree of legislative discretion admissible in the case must first be determined. Legal discretion is limited. Political discretion has a far wider range. It embraces, combines and considers all circumstances, events and projects, foreign or domestic, that can affect the national interest. Legal discretion has not the means of ascertaining the ground on which political discretion may have proceeded. seems admitted that necessity might justify the acts in question. But how shall legal discussion determine that political discretion, surveying the vast concerns committed to its trust, and the movements of conflicting nations, has not perceived such necessity."

It

Speaking of the objects for which this power may be exercised, the learned judge said,—

"The mode of its management is a consideration of great delicacy and importance; but the national right or power, under the constitution, to adapt regulations of commerce to other purposes than the mere advancement of commerce, appears to me unquestionable."

. The late Justice STORY, in commenting upon this provision of the constitution, and in the same connection, upon the em

Wynhammer agt. The People.

bargo laws, and the question involved in the case just cited, says,

"No one can reasonably doubt that the laying of an embargo, suspending commerce for a limited period, is within the scope of the constitution. But the question of difficulty was, whether congress, under the power to regulate commerce with foreign nations, could constitutionally suspend and interdict it wholly for an unlimited period; that is, by a permanent act, having no limitation as to duration, either of the act or of the embargo.

An appeal was made to the judiciary upon the question; and it having been settled to be constitutional, the decision was acquiesced in, though the measure bore with almost unexampled severity upon the Eastern States; and its ruinous effects can still be traced along their extensive seaboard.

*

Non-intercourse and embargo laws are within the range of legislative discretion; and if congress have the power, for purposes of safety, of preparation or counteraction, to suspend commercial intercourse with foreign nations, they are not limited as to duration any more than as to the manner and extent of the measure."

The effect of these laws upon private property was far more extensive and destructive than any that can possibly result from the law in question. The right to export property, designed and valuable only for that purpose, was one of those " essential and definitive characteristics which constituted its main value." The prohibition was "destructive of its principal value;" and property of the value of many millions was rendered worthless by their operation.

The constitution of the United States contains the same restrictions upon the legislative power of congress that is imposed by the constitution of our state upon its legislature, that no man shall be deprived of his property without due process of law. But in all the opposition which the embargo laws encountered, the objection that they violated this provision of the constitution, occurred to none of its astute and able opponents.

The case of the William is a direct authority for the proposition, that the national government, under the constitutional

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grant of power to regulate commerce, may restrict it in its discretion, that such restriction may be carried to the extent of absolute prohibition; and that this power is not restricted to measures exclusively beneficial to commerce, but that it may be exercised as an instrument for other purposes of general policy and interest. These propositions may, in my opinion, be rested with equal safety upon the authority of this case, and the conclusive reasoning by which it is sustained. The powers of congress are enumerated in the constitution, and are expressly restricted to those so enumerated.

The power in question is limited to commerce with foreign nations and among the states. That the same power over internal commerce is reserved in all its amplitude by the several states, is not questioned; and that a state by virtue of its powers of original sovereignty which are merely limited by specific restrictions, and not enumerated in its constitution, may, in the absence of such restrictions, exercise the same control over its domestic commerce, as that exercised by congress over foreign commerce, and for the same purposes, cannot be doubted.

In view of this long-continued and uniform course of legislation, based upon the concurring authority of the general government and the several states, sanctioned by general acquiescence and vindicated by judicial authority whenever questioned, accompanied as such legislation has uniformly been by cotemporaneous constitutional restrictions identical with the restriction now invoked against this law, the question as to a conflict between the law, in the respect now under consideration, and the constitution, must be regarded as settled.

The prohibition in question, as I have remarked, does not affect the possession of the property. It does not interfere with the right of sale except within the state; and notwithstanding the prohibition, those interested in this property may manufacture and export it for sale elsewhere. I say, notwithstanding this prohibition; I am aware that there are provisions in the act which were, perhaps, designed, and which may possibly be construed to prevent this.