ERROR TO THE DISTRICT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF ILLINOIS.
MR. JUSTICE BREWER, after making the foregoing statement, delivered the opinion of the court.
The single question is one of constitutionality. Has congress power to punish the offense charged, or is jurisdiction thereover solely with the State? Undoubtedly, as held, "Congress has the power to exclude aliens from the United States; to prescribe the terms and conditions on which they may come in; to establish regulations for sending out of the country such aliens as have entered in violation of law, and to commit the enforcement of such conditions and regulations to executive
officers." Turner v. Williams, 194 U.S. 279, 289. See also Fong Yue Ting v. United States, 149 U.S. 698, 708; Head Money Cases, 112 U.S. 580, 591; Lees v. United States, 150 U.S. 476, 480; United States v. Bitty, 208 U.S. 393.
It is unnecessary to determine how far Congress may go in legislating with respect to the conduct of an alien while residing here, for there is no charge against one; nor to prescribe the extent of its power in punishing wrongs done to an alien, for there is neither charge nor proof of any such wrong. So far as the statute or the indictment requires, or the testimony shows, she was voluntarily living the life of a prostitute, and was only furnished a place by the defendants to follow her degraded life. While the keeping of a house of ill-fame is offensive to the moral sense, yet that fact must not close the eye to the question whether the power to punish therefor is delegated to Congress or is reserved to the State. Jurisdiction over such an offense comes within the accepted definition of the police power. Speaking generally, that power is reserved to the States, for there is in the Constitution no grant thereof to Congress.
In Patterson v. Kentucky, 97 U.S. 501, 503, is this declaration:
"'In the American constitutional system,' says Mr. Cooley, 'the power to establish the ordinary regulations of police has been left with the individual States, and cannot be assumed by the national government.' Cooley, Const. Lim. 574. While it is confessedly difficult to mark the precise boundaries of that power, or to indicate, by any general rule, the exact limitations which the States must observe in its exercise, the existence of such a power in the States has been uniformly recognized in this court. Gibbons v. Ogden, 9 Wheat. 1; License Cases, 5 How. 504; Gilman v. Philadelphia, 3 Wall. 713; Henderson v. Mayor of the City of New York, 92 U.S. 259; Railroad Company v. Husen, 95 U.S. 465; Beer Company v. Massachusetts, 97 U.S. 25. It is embraced in what Mr. Chief Justice Marshall in Gibbons v. Ogden, calls that 'immense mass
of legislation,' which can be most advantageously exercised by the States, and over which the national authorities cannot assume supervision or control."
And in Barbier v. Connolly, 113 U.S. 27, 31, it is said:
"But neither the amendment -- broad and comprehensive as it is -- nor any other amendment, was designed to interfere with the power of the State, sometimes termed its police power, to prescribe regulations to promote the health, peace, morals, education and good order of the people, and to legislate so as to increase the industries of the State, develop its resources, and add to its wealth and prosperity."
Further, as the rule of construction, Chief Justice Marshall, speaking for the court in the great case of McCulloch v. ...