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The Pamphlet Collection of Sir Robert Stout: Volume 36

The Supreme Court

The Supreme Court

of this country in the celebrated license cases. These cases were argued by Daniel Webster, Rufus Choate, B. F. Hallett, John P. Hale, and others, in favor of the licensees; and by very able counsel on the other side. I believe that the opinions are considered by the profession as very able and well considered. The court was unanimous, and most of the judges delivered separate, though according opinions. The cases are reported in 5 Howard, 504-633.

Judge Taney says, page 576:

The laws of Congress regulating foreign commerce authorize the importation of spirits, distilled liquors, and brandy, in casks or vessels not containing less than a certain quantity specified in the laws upon this subject. Now if the State laws in question come in collision with those acts of Congress, and prevented or obstructed the importation or sale of these articles by the importer in the original cask or vessel in which they were imported, it would be the duty of this court to declare them void.

On page 577:

If any State deems the retail and internal traffic in ardent spirits injurious to its citizens and calculated to produce idleness, vice, and debauchery, I see nothing in the Constitution of the United States to prevent it from regulating and restraining the traffic or from prohibiting it altogether if it thinks proper.

On page 579:

It appears to me to be very clear that the mere grant of power to the General Government can not upon any just principles of construction be construed to be an absolute prohibition to the exercise of any power over the same subject by the Stales.

I call attention to the language in italics as also bearing upon the nature of the concurrent and co-operative jurisdiction which this amendment proposes to give, both to the States and the nation, over the subject-matter of distilled liquors.

Judge McLean, on pages 588 and following, says:

The license laws of Massachusetts are essentially police laws; enactments similar in principle are common to all the States. A great moral reform which enlisted the judgments and excited the sympathies of the public has given notoriety to this course of egislation and extended it lately beyond its former limit. The acknowledged police page 41 power of a State extends often to the destruction of property. A nuisance may be abolished. Everything prejudicial to the health or morals of a city may be removed; merchandise from a port where a contagious disease prevails being liable to communicate the disease, may be excluded, and in extreme cases may be thrown into the sea. It is a power essential to self-preservation, and exists necessarily in every organized community, it is indeed a law of nature, and is possessed by man in his individual capacity. He may resist that which does him harm, whether he be assailed by an assassin or approached by poison; and it is the settled construction of every regulation of commerce that under the sanction of its general laws no person can introduce into a community malignant diseases or any thing which contaminates its morals or endangers its safety. Individuals in the enjoyment of their own rights must be careful not to injure the rights of others. From the explosive nature of gunpowder, a city may exclude it. * * * These are acts of self-preservation. * * * In the progress of population, of wealth, and civilization, new and vicious indulgences spring up, which require restraints which can only be imposed by legislative power.

Judge Woodbury says, page 630:

After articles have come within the territorial limits of States, whether on land or water, the destruction itself of what constitutes disease and death, and the longer continuance of such articles, or the terms and conditions of their continuance, when conflicting with their legitimate police, or with their power over internal commerce, or with their right of taxation over all persons and property within their jurisdiction, seems one of the first principles of State sovereignty and indispensable to public safety.

It would be easy, sir, to multiply authority from all the courts of the country, which assert, I think, with unvarying uniformity, the power of the State to control absolutely the use of alcohol, subject only to the protection given it by the Constitution of the United States, the extent to which it shall be exerted being purely a matter of expediency, while against this power and its exercise can be found nothing but the speculations of writers whose theories are either untenable or inapplicable to this or perhaps any other state of society which can arise until the millennium shall abolish all law by the absolute extirpation of evil from among men.