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The Green Bag
in the so-called original package cases of Bowman v. Railway Company• and Leisy v. Harding and the governmental principles therein expressed were po litically and socially untenable and a retreat was necessary. Prior to the Civil War and especially in the fifties, a temperance wave swept over the coun try. Even Abraham Lincoln was a pronounced prohibitionist. Prohibitory laws were passed in Maine, Minnesota, Massachusetts, Rhode Island, Vermont, Michigan, Connecticut, New York, New Hampshire, Nebraska, Delaware, Indiana, Iowa, Wisconsin, Ohio and Illinois, while a prohibition statute was only lost in Pennsylvania by one vote, and in Minnesota a popular vote ratified the adoption of the Maine law. The rulings in the License Cases were the result of this public sentiment. With the breaking out of the war, however, the liquor interests became entrenched. The Government had resorted to an excise tax on liquor, and liquor paid a large portion of the expenses of the war. After the war both political parties were unwilling to do without this enormous revenue, and the war issues also had for a time overshadowed the temperance question. It was in these surroundings and in this condition of popular thought that the case of Leisy v. Hardin was decided. Since the decision in that case, however, the prohibition sentiment has grown with leaps and bounds, and the prohibitionists have today the same political strength (not as a party, but in the parties) as they had before the Civil War. The License Cases, it is true, were not decided until 1867, but they were decided by judges who had been trained in the ante-bellum days. Leisy v. Hardin and Bowman v. Railway Com • 125 U. S. 465. t 135 U. S. 100.
pany substantially overruled the socalled "License Case" of Peirce v. New Hampshire* and especially the position of Mr. Justice Grier taken therein.t The cases of In re Raher and Delamater v. South Dakota could have been satisfactorily and easily de cided by a frank statement on the part of the court that the decisions in Bow man v. Railway Company and Leisy v. Hardin were wrong in principle and by a frank overruling of them. Instead of this there was found the usual re luctance to overrule which has lead to so much of the refinement and confusion which mars our judge-made law. The result is that we have two more cases which are right in their immediate re sults and whose ultimate conclusions will be followed, but whose reasoning and legal doctrines must as time goes on be modified and explained, and in many particulars must ultimately be overruled. In the cases of Bowman v. Railway Company and Leisy v. Hardin, the Court, it will be remembered, held that it was incompetent for a state leg islature to impose a license fee on or to prohibit or in any way restrict the sale of liquor imported from an outside state while in the original package. In them were announced the doctrines, that the power of Congress over interstate com merce was exclusive and supreme; that silence on the part of Congress implied a command that the states should not act, and that the protection of the com merce clause of the Constitution con tinued until the original package had been broken or the goods had been min gled with the mass of the common prop erty of the state. As a practical gov ernmental proposition they held that the state was powerless without federal aid to enforce its own public policy in • 5 Wall. 462. t See long foot note on p. 214 infra.
