191^-] OF THE UNITED STATES. 365 



decided, and therein the conception of the State police power was 

 further developed and elucidated^ The question at issue was the 

 validity of an Act of New York granting to Fulton and another ex- 

 clusive rights to navigate the waters of the State in vessels pro- 

 pelled by fire or steam. It had been argued that the cases sustaining 

 State statutes of quarantine were readily distinguishable. In reply 

 to this argument, counsel argued as follows in support of the State 

 law : 



"The quarantine laws further illustrate our position. The appellant's 

 counsel says, these are to be considered merely as laws of police; they are 

 laws of police, but they are also laws of commerce; for such is the nature of 

 that commerce, which we are told must be regulated exclusively by Congress, 

 that it enters into, and mixes itself with, almost all the concerns of life."^" 



Mr. Chief Justice Marshall, in delivering the unanimous decision of 

 the Court declaring the unconstitutionality of the New York law, 

 so clearly and so logically stated the functions and status of the 

 police powers of a State, that the subsequent confusion of thought 

 upon this subject of so many judges must cause one to wonder at 

 the possibility. It is, however, but one more illustration of the 

 vagaries of interpretation to which fixed political convictions may 

 lead even the judiciary. Said Mr. Chief Justice Marshall: 



" Since, however, in exercising the power of regulating their own purely 

 internal affairs, whether of trading or police, the States may sometimes enact 

 laws, the validity of which depends on their interfering with, and being con- 

 trary to, an act of Congress passed in pursuance of the Constitution, the 

 Court will enter upon the inquiry, whether the laws of New York, as ex- 

 pounded by the highest tribunal of that State, have, in their application to 

 this case, come into collision with an Act of Congress, and deprived a citizen 

 of a right to which that Act entitles him. Should this collision exist, it will 

 be immaterial, whether those laws were passed in virtue of a concurrent 

 power ' to regulate commerce with foreign nations and among the several 

 States,' or in virtue of a power to regulate their domestic trade and police. 

 In one case and the other, the Acts of New York must yield to the law of 

 Congress; and the decision sustaining the privilege they confer, against a 

 right given by a law of the Union, must be erroneous. This opinion has been 

 frequently expressed in this Court, and is founded, as well on the nature 

 of the government, as on the words of the Constitution. In argument, how- 

 ever, it has been contended, that if a law passed by a State in the exercise of 

 its acknowledged sovereignty, comes into conflict with a law passed by 



'=«Ibid., p. 112. 



PROC. AMER. PHIL. SOC. , LI, 2o6 U, PRINTED SEPT 9, I9I2. 



