the power which protects the health of the people. Congress, by limiting commercial privileges by its own rules, which will prevent the ingress or spread of disease, and respecting the health regulations of each State, will do all for commerce it should do consistently with the welfare of the people. In this way, it seems to me, the two systems of government under our federal system may constitutionally and harmoniously co-operate for the promotion of our commerce, and for the security of the health of our people.

For it cannot be the interest of any State to obstruct its own commerce by needless and adverse health laws, nor can it be the policy of Congress to foster commerce by the sacrifice of the lives or health of the people of the State. Why may not both Congress and the States harmonize in concurrent action, within their respective constitutional functions, in the adoption of a wise policy, under the sagacious suggestions of the eminent medical and scientific men of the country? I confess I can see no constitutional difficulty to the adoption of a system of commercial and health laws in perfect harmony with each other, made legal by the sanction of the Federal and State governments.

If these views only avail to suggest some action for your Association which shall result in the good we all desire, I shall be gratified. I submit them with that hope, and with deference and respect for the opinions of others upon a subject on which there has been much discussion, but no judicial decision. I am, with sincere regard, your friend,

J. R. TUCKER.

THE LAW OF NATIONAL QUARANTINE.

It is remarkable that, in the year 1878, almost in the second century of the Federal Union, any question is raised as to the right of the Congress of the United States, to establish a national system of quarantine measures, independent of all quarantine systems of State or municipalities. It is still more remarkable, that doubts should be expressed by good lawyers, as to the absolute right of the Congress to use their supreme powers over the regulation of foreign and inter-State commerce, in such manner as will protect the whole people of the United States from all detriment, whether that detriment take the form of fraud upon the revenue, injury from foreign commercial competition or regulations, or epidemics of imported foreign plagues. The more so, when the unbroken current of the decisions of the Federal Supreme Court, and the legislation of Congress since 1789, acquiesced in by all political parties, is to the effect, that the only limit to the power of the Congress over foreign and inter-State commerce is, that the power shall be exercised to provide for the common defence, and promote the general welfare.

The recent epidemic of yellow fever has made the question of an efficient system of quarantine, of supreme importance to the whole people; and especially to that part dwelling within the limits of long, high summer temperatures.

Whatever views are entertained as to the intrinsic nature or specific cause of yellow fever, the preponderance of medical opinion is on the side of that, which holds the fever in this country, to be a disease of foreign origin whose germs are destroyed by our winter frosts, and which is always, when it reappears, imported anew into the United States, in the ordinary vehicles of commercial intercourse.

If, then, the disease is of foreign birth and imported, it follows that every possible safeguard injected into our commercial regulations, and thus interposed between our people and the place of export of the disease, adds so much to the common defence and general welfare.

If the Congress have the power to provide such safeguards, as a part of the national regulations of commerce, then the nation has the protection, in addition to any local systems, of an external line of defence against the plague, equally strong at every point, and equally removed everywhere, from the weakness of local systems of prevention, administered with the eyes directed more, perhaps, to the demands of competition in trade, than to those of public health.

It is essential, therefore, to the speedy establishment of such national measures of protection as our case demands, that there should be absolutely no more doubt respecting the right of the Congress to establish them than there is now of the right of the National Legislature to establish the custom regulations in force at present. As soon as all discussions as to the powers of the Congress are at an end, a common conclusion will soon be reached as to the best way of exercising those powers.

Most of the difference of opinion amongst the profession as to the right of the general government to establish an independent system of quarantine measures, seems to have grown out of a dictum in Gibbons vs. Ogden (9 Wheaton, 203), which Judge Story adopted into his Commentaries (§ 1017), it is therein said: "Inspection laws, quarantine laws, and health laws, as well as laws for regulating the internal commerce of a State, etc., are component parts of State Legislation, resulting from the residuary powers of State sovereignty. No direct powers over these is given to Congress, and consequently they remain subject to State legislation, though they may be controlled by Congress when they interfere with their acknowledged powers."

In the first place, the subject of quarantine, in any form, was not before the court in the case of Gibbons v. Ogden; Ch. J. Marshall used the language cited above, in illustration, going outside of the facts of the case before this court, in order to throw light upon the reasons for the judgment there rendered by examples drawn from without.

Secondly. The dictum does not bear the construction put upon it by those who cite it as authority against the power of Congress to establish an independent national quarantine system. The only proposition enunciated in that dictum is, that "no direct power over these objects," viz: State quarantine laws, "is given to Congress, though they may be controlled by Congress when they interfere with their acknowledged power (9 Wheaton, 203, 206)." The dictum does not lay down that other proposition, tortured out of it by those whose ideas of the National Constitution are "of those refinements which owe ther origin to a zeal for liberty more ardent than enlightened."-(Federalist, No. 26), viz: That quarantine powers are the exclusive prerogatives of the States. On the contrary, it is said by Story, in the same connection, that the power of Congress to regulate commerce "extends to the regulation and government of seamen on board of American ships," etc. "It extends to quarantine laws and pilotage laws and wrecks of the sea."-(See Story's Comm. § 1075.)

So much for the case of Gibbons v. Ogden. Later decisions have defined more clearly the character of the controlling power of Congress over local quarantine systems, referred to in that case, and made it evident that it is almost impossible to devise a local system of quarantine, unless as costly and elaborate as that of the State of New York, at Hoffman's Island (which has a plant of over $2,000,000), which will not be obnoxious to the constitutional objection, that it goes too far, and trenches upon the powers of Congress by obstructing commerce. On the other hand, the same decisions make it clear that every local system may be controlled and supervised by the Congress, in

the exercise of their supreme powers over foriegn and inter-State commerce, to the destruction, if necessary, of its efficiency.

The right of States to establish quarantine regulations belongs to the class of powers broadly denominated the

POLICE POWERS OF THE STATES.

These police powers, their extent, and their relative position, with reference to the supreme powers of Congress over inter-State and foreign commerce, have been fully discussed in recent decisions of the Federal Supreme Court. In the case of the Hannibal & St. Jo. R. R. Co. v. Husen, 95 U. S. 465, Strong, J., delivering the opinion of the court, says: "Transportation is essential to commerce, or rather it is commerce itself, and every obstacle to it or burden laid upon it by legislative authority is regulation" ". "We admit that the deposit in Congress of the power to regulate foreign commerce and commerce among the States was not a surrender of that which may be properly denominated police power. What that power is, it is difficult to define with sharp precision. It is generally said to extend to making regulations promotive of domestic order, morals, health and safety." "Under it a State may legislate to prevent the spread of crime, or pauperism, or disturbances of the peace. It may exclude from its limits convicts, paupers, idiots and lunatics and persons likely to become a public charge, as well as persons inflicted by contagious or infectious diseases; a right founded as intimated in the Passenger cases, 7 How. 283, by Grier, J., in the sacred law of selfdefence" "The same principle it may also be conceded would justify the exclusion of property dangerous to the property of citizens of the State, for example animals having contagious or infectious diseases. All these exertions of power are in immediate connection with the protection of persons and property against noxious acts of other persons, or such use of property as is injurious to the property of others. They are self defensive." But whatever may be the nature and reach of the public power of a State, it can not be exercised over a subject confided exclusively to Congress by the Federal Constitution. It cannot invade the domain of the National Government. It was said in Henderson v Mayor of New York, 92 U. S. 272, to be clear from the nature of our complex form of government, that whenever the statute of a State invades the domain of legislation which belongs exclusively to the Congress of the United States, it is void, no matter under what class of powers it may fall, or how closely allied it may be to powers conceded to belong to States." "While we unhesitatingly admit that a State may pass sanitary laws, and laws for the protection of life, liberty, health or property within its borders; while it may prevent persons and animals suffering under contagious or infectious diseases, or convicts, etc., from entering the State, while for the purpose of self protection it may establish quarantine, and reasonable inspection laws, it may not interfere with transportation into or through the State beyond what is absolutely necessary for self protection." And it was laid down in Henderson v. Mayor that, in whatever language a statute may be framed, its purpose must be deter

mined by its natural and reasonable effect,' and it was also said, that "this power frequently referred to in the decisions of this court, has been, in general terms, somewhat loosely called the police power. It is not necessary for the cause of this discussion to define it more accurately than it has been defined already. It is not necessary, because whatever may be the nature and extent of that power where not otherwise restricted, no definition of it and no urgency for its use, can authorize a State to exercise it in regard to a subject matter which has been confided exclusively to the discretion of Congress by the Constitution."

In Henderson v. Mayor, etc., (supra), the court further say: "It is said, however, that under the decisions of this court there is a kind of neutral ground, especially in that covered by the regulation of commerce, which may be occupied by the State, and its legislation be valid so long as it interferes with no act of Congress or treaty of the United States. Such a proposition is supported by the opinions of some of the Judges in the Passenger cases, (7 How. 283); by the decisions of this court in Cooley v. The Board of Wardens, 12 How. 299; and in the cases of Crandall v. Nevada, 6 Wall. 35, and Gilman v. Philadelphia, 3 Wall. 713. But this doctrine has always been controverted in this court and has seldom been stated without dissent. These decisions, however, all agree, that under the commerce clause of the Constitution, or within its compass, there are powers, which from their nature are exclusive in Congress; and in the case of Cooley v. The Board of Wardens, it was said that whatever subjects of this power are in their nature national, or admit of one uniform system or plan of regulation may justly be said to be of such a nature as to require exclusive regulation by Congress "Whether

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in the absence of such action (by Congress) the States can, or how far they can, by appropriate legislation protect themselves against actual paupers, vagrants, criminals and diseased persons arriving in their territories from foreign countries, we do not decide."

In Chy. Lung v. Freeman, 92 U. S. 285, the court say: "We are not called upon by this statute to decide for or against the right of a State, in the absence of legislation by Congress, to protect herself by necessary and proper laws against paupers and convicted criminals from abroad; nor to lay down the definite limit of such right if it exist. Such a right can only arise from a vital necessity for its exercise, and cannot be carried beyond the scope of that necessity." The 4th head note of Welton v. The State of Missouri, 91 U. S. 375, reads: "That the non-exercise by Congress of its power to regulate commerce among the several States is equivalent to a declaration by that body that such commerce shall be free from any restrictions."

ASCERTAINED BY THE FEDERAL COURTS.

The U. S. Supreme Court say: "We have not overlooked the decisions of very respectable courts in Illinois, where statutes similar to the one before us