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acting under a different power; subject, only, to this limitation. that in the event of collision, the law of the state must yield to the law of congress.
The line which separates the regulations of commerce, from those of state police, is sometimes not so distinct as to prevent conflict of opinion; but fortunately for the public security, there is the conservative power of the judiciary to determine the right. One of the questions so approaching this line, is that of the inspection laws of the states, which are claimed to be regulations of
It was well said by the supreme court of the United States, a "that inspection laws may have a remote and considerable influence on commerce, will not be denied; but that a power to regulate commerce. is the source from which the right to pass them is derived, cannot be admitted. The object of inspection laws, is to improve the quality of articles produced by the labor of a country; to fit them for exportation; or, it may be, for domestic use. They act upon the subject before it becomes an article of foreign commerce, or of commerce among the states, and prepare it for that purpose. They form a portion of that immense mass of legislation, which embraces everything within the territory of a state, not surrendered to the general government: all of which can be most advantageously exercised by the states themselves. Inspection laws, quarantine laws, health laws of every description, as well as laws for regulating the internal commerce of a state, and those which respect turnpike roads, ferries, &c., are component parts of this mass."
"No direct general power over these objects is granted to congress; and consequently they remain to state legislation. If the legislative power of the Union can reach them, it must be for national purposes; it must be where the power is expressly given for a special purpose, or is clearly incidental to some power which is expressly given. It is obvious, that the government of the Union, in the exercise of its express powers, that, for example of "regulating commerce with foreign nations and among the states," may use means that may also be employed by a state, in the exercise of its acknowledged powers; that, for example, of regulating a Gibbons v. Ogden, 9 Wheat. 203, 204, &c.
commerce within the state. If congress license vessels to sail from one port to another in the same state, the act is supposed to be, necessarily incidental to the power expressly granted to congress, and implies no claim of a direct power to regulate the purely internal commerce of a state, or to act directly on its system of police'
"So a state in passing laws on subjects acknowledged to be within its control, and with a view to those subjects shall adopt a measure of the same character with one which congress may adopt, it does not derive its authority from the particular power which has been granted, but from some other, which remains with the state, and may be executed by the same means.'
"All experience shows, that the same measures, or measures scarcely distinguishable from each other, may flow from distinct powers; but this does not prove that the powers themselves are identical. Although the means used in their execution may sometimes approach each other so nearly as to be confounded, there are other situations, in which they are sufficiently distinct to establish their individuality."
"In our complex system, presenting the rare and difficult scheme of one general government, whose action extends over the whole, but which possesses only certain enumerated powers; and of numerous state governments which retain and exercise all powers not delegated to the Union, contests respecting power must arise. Were it even otherwise, the measures taken by the respective governments to execute their acknowledged powers, would often be of the same description, and might sometimes interfere. This however does not prove that the one is exercising, or has a right to exercise the powers of the other."
NOTE 4.-Article 1, section 8, of the constitution of the United States, which grants to congress authority to regulate commerce with foreign nations and among the several states, is not so exclusive as to prohibit the states from legislating upon the subject of pilots, if congress has not seen fit to legislate upon that same subject. Stilwell v. Raynor, 1 Daley, 47; 12 How. U. S. R. 299. And in absence of federal legislation, the states have a right to protect their commerce, by exercising on the neighboring seas, the power accorded for that purpose to every maritime people. Cisco v. Roberts, 36 N. Y. 292, and cases cited. The regulations of port pilotage, stand substantially upon the same footing with our quarantine laws. It is the right, and duty of the state, by appropriate legislation to guard the public health, and the security of general commerce, and to provide
But this is bordering upon the line of the conflict of laws, which it is no purpose of this work to enter upon. The cases cited in the note, will be found in their reasoning to have been quite exhaustive of the subject, and are full of learning on the question of the extent of the police power of the states. It is more our object to exhibit the existence of the police power in the state, as a necessary and useful power, and to defend it against the charge often made as to its despotic, oppressive and unconstitutional character, than to attempt to enumerate the multiplied subjects which are included within the power.
Among the subjects included in this police power, is that of requiring the observance of the first day of the week as the christian Sabbath, as to which the statutes of the state have provided penalties for their violation. It neither interferes with the religious belief of any citizen, nor with any doctrine of religious faith or practice. It is no violation of the constitution which allows the free enjoyment of free profession and worship, without discrimiagainst the dangers to which every maritime people are exposed by intercepting and averting them on the sea, without the bounds of exclusive territorial dominion. Gilmore v. Philadelphia, 3 Wall. 730. The states have always exercised this power, and from the nature and objects of the two systems of government, they must always continue to exercise it, subject however in all cases, to the paramount authority of congress, whenever the power of the states shall be exerted within the sphere of the commercial power which belongs to the nation.
The states may exercise concurrent or independent power in all cases but three. 1st. Where the power is lodged exclusively in the federal constitution. 2d. Where it is given to the United States, and prohibited to the states. 3d. Where from the nature and subjects of the power, it must necessarily be exercised by the national government exclusively. Houston v. Moore, 5 Wheat. 49. It is no objection to distinct substantive powers, that they may be exercised on the same subject. It is not possible to fix definitely their respective boundaries. In some instances their action becomes blended; in some the action of the state limits or displaces the action of the nation; in others the action of the state is void, because it seeks to reach objects beyond the limits of state authority. Gilmore ▼. Philadelphia, 3 Wall. 730. So, an act of the legislature of New York providing for the appointment of harbor masters in the city of New York, and their fees, &c., does not conflict with the provisions of the United States constitution giving power to congress to collect duties and regulate commerce. Benedict v. Vanderbilt, 25 How. Pr. R. 209. But, an act of the same state imposing a special tax on every sale made by public auction, &c., of merchandize imported from any place beyond the Cape of Good Hope, is unconstitutional and void. People v. Moring, 47 Barb. 642.
nation, or preference, to all mankind. It creates no legal religion in the state. The christian religion is recognized as a part of the common law of this state. The observance of this day, does not interfere with any natural right, or with the equal right of any citizen to entertain any other belief. a It merely restrains the people from secular pursuits and practices which the legislature deem hurtful to the morals and good order of society. This is within the legislative power. So is the right to declare void all contracts made on that day. It does not touch private property, or impair its value.
The christian religion, as a part of the common law of England, can be traced back by positive legislation, (if legislation it may be called,) to the day of the Saxon Kings. The code of King Alfred commences with an enactment of the ten commandments; it recites the advent and passion of our Savior; the founding of the church; the mission of the Apostles, and the letter issued from the church at Jerusalem, recorded in the fifteenth chapter of Acts, verse twenty-three &c. To this summary was added the following remarkable words: "From this, our doom, a man may remember, that he judge every one righteously; he need no other doom book.” These edicts, like most of what are called the early statutes of England, became in time the common law, and continued to be such, down to the time of our American colonization, and we borrowed it from thence, and made it, the ground work of our own; and afterwards adopted the English common law by our written constitutions, although we rejected all union between church and state, as a part of the fundamental organization.
Though in the political organization of the national and state governments, there was a complete severance between the organized church, and the organized state, there was no intended negative of the doctrines or precepts of the christian religion; or an intended or implied adoption therein, to an equality, of Atheism, Paganism, or any kind of infidelity with the christian religion; on the contrary, not only in the Declaration of Independence, which was the basis of our fundamentals, but in the whole administration of the law, there is recognized an immortality of the soul, and the retribution of a conscious hereafter, an all powerful, just, and holy
a Lindenmuller v. The People, 33 Barb. 573.
God who will punish evil doers in this life, and in a life to come, with the penalties for sin. This is also recognized by its adding its sanction of oaths in the administration of justice, and in the administration of governmental affairs. Such oaths assume the retributions of an hereafter by the God of our holy religion, for a violation of the sacred obligations of them. In the taking of such oaths by one whose condition requires it, there is placed before him, and he takes upon himself, to deal with the dread realities of a future and unseen world; it commits him to an acknowledgment that God is, that He sees, hears and knows the secret thoughts and intents of his heart; "and that He, will by no means clear the guilty."
In the state of Ohio, under their constitution, it is denied that the christian religion more than any other, is a part of the common law of the state, though they have a statute prohibiting labor on the Sabbath day. The courts hold this statute to be a mere municipal or police regulation, a and in Pennsylvania and South Carolina, their Sabbath laws seem to be sustained on the same ground, b but, by the courts in New York all secular transactions are held to be violations of statute and void as against public policy.c
While therefore, we find that though nearly every state have enacted statutes against the desecration of, and for the quiet observance of what is called the "Lords Day," they do not all agree upon the basis of their enactment. Those states that deny that these laws were passed out of respect to the christian religion, are disposed to charge that idea as puritanical, or what is more odious, as the offspring of the fanatical persecutions which gave the holy inquisition such horrid force, " and placed the civil and religious liberty, and the lives of nations and men, at the mercy of the bloodiest power that ever inflicted misery upon the human race." d Whatever may be the declared policy of the states through its courts, as to these enactments, it can hardly be denied, that the recognition by the legislatures of states of one of the essential features of our religion, to "Remember the Sabbath day to keep it
a Bloom v. Richards, 22 Ohio, 387.
b Specht v. Commonwealth, 8 Barr. 312; Charleston v. Benjamin, 2 Strob. Law, R. 508.
c Watts v. Van Ness, 1 Hill, 76; Smith v. Wilcox, 19 Barb. 581.
d Specht v. Commonwealth, Supra, Penn. R. 1848.