Page:Harvard Law Review Volume 2.djvu/292

 274

HAR YARD LA W RE VIE W,

or regulations which are in direct, positive, and permanent con- flict with express provisions or fundamental principles of the na- tional compact/' Appended to this report was a decision rendered in 1813 by Mr. Justice Johnson of the Supreme Court, himself a native South Carolinian, holding the law unconstitutional under the clause granting to Congress power to regulate commerce with foreign nations and among the several States, and declaring with feeling that "on the constitutionality of the law under which this man is confined, it is not too much to say that it will not bear argument."
 * That the police power of the States can justify no enactments

The minority report of the committee took the ground that the laws were necessary regulations of internal police, within the re- served power of the States ; that Congress had never exercised its power to regulate commerce over this subject ; and that colored persons were not " citizens " in the sense of the Constitution. Quarantine laws were repeatedly cited, both in the minority re- port and the opinion of Attorney-General Berrien, appended in its support, as undistinguishable from the laws in question.' ** Is this right of self-protection," said the latter, "limited to defence against physical pestilence } " The position of the minority derived strong support from the language of the court in the case of City of New York V. Miln.^ Yet the proposition laid down in the resolution above quoted was neither in the minority report nor Mr. Berrien's opinion seriously and directly controverted, — strong testimony at that period of controversy to the strength of the position.

The question is, whether by the act of the people of a State in adopting the Constitution a practice of the internal-police powers of the State Government was taken away. Now, if it be conceded that a free colored person was a citizen in the meaning of the Constitution, it can hardly be doubted at this day that a State could not, without violating the clause in the Constitution quoted above, imprison him for entering her borders. In the leading case of Gibbons v. Ogden,^ the court, speaking through Chief Justice Marshall, had declared that since the law of New York was in conflict with constitutional law of the United States, it was im- material whether or not the State law was passed " in virtue of a power to regulate domestic trade and police.'* Yet in the period

1 II Pet. 102, 138 (1837). * 9 Wheat, i, 210 (1824).