I9I2.] OF THE UNITED STATES. 367 



John Marshall died in 1835, and within less than two years after 

 his death the case of New York t's. Miln^"° was decided. The State 

 had enacted, first, that the master of every vessel arriving in New 

 York should make a report in writing of all passengers whom he had 

 landed, or who had departed from his vessel with a view to subse- 

 quently reaching New York ; and secondly, that the master of such 

 vessel should give bond for each passenger or child thereon that 

 none should become a charge on the city. Said the Court : 



" We are of opinion that the Act is not a regulation of commerce, but of 

 police; and that being thus considered, it was passed in the exercise of a 

 power which rightfully belonged to the State. "^^ 



Gibbons z's. Ogden and Brown z's. Maryland are formally approved 

 and declared to be wholly consistent with the decision rendered ; and 

 in language already quoted, the Court say : 



" All these powers which relate to merely municipal legislation, or what 

 may, perhaps, more properly be called internal police,'^' are not thus sur- 

 rendered or sustained [by the Constitution] ; . . . consequently, in relation 

 to these, the authority of a State is complete, unqualified and exclusive."'"^ 



In so arguing, the Court fails to see that it is dangerously near to 

 the logical fallacy: petitio principii. It will not logically do to say: 

 The police powers belong to the reserved rights of the States — the 

 act in question is an exercise of the police power — therefore it is 

 constitutional. For it might well be that an act passed by a State 

 under its power of " internal police " might operate to regulate 

 commerce, entirely apart from the motives of its authors or the 

 main object it subserved. As Mr. Chief Justice Marshall had simply, 

 but with inspired penetration, said : The Federal power to regulate 

 commerce " is co-extensive with the subject on which it acts and 

 cannot be stopped at the external boundary of a State, but must 

 enter its interior. "2"* The question was not, could not be, whether 

 the act in question was an exercise of the police power of the State. 

 It might well be regarded, and properly, as such an act. The ques- 

 tion was inevitably : Was the statute invalid, although an exercise 

 of the police power, inasmuch as it infringed on the power of Con- 



260 

 361 

 202 



II Peters, loa (1837). "'^11 Peters, p. 239. 



Ibid., p. 132. -^ 12 Wheat., p. 446. 



Itahcs are in the opinion. 



