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would be suggested by a particular intent to prohibit retrospective legislation. Besides, the laws which had effected all the mischief the Constitution intend. ed to prevent, were prospective, as well as retrospective in their operation. They embraced future contracts as well as those previously made; from this circunstance, therefore, there is less reason for imputing to Convention an intention not manifested by their language, and adopt a construction which would confine a restriction designed to guard against those mischiefs in future to retrospective legislation.
Notwithstanding all this, the decision of the majority of the Supreme Court, in the case which gave rise to this discussion, was, as we have mentioned, in favour of the validity of a discharge under a state insolvent law, where the contract was made between citizens of the state under the insolvent system of which the discharge had been obtained, and in whose courts it had been pleaded. But upon the question whether a discharge of a debtor, under a state insolvent law, would be valid against a creditor or citizen of another state, who had never voluntarily subjected himselt to the state authority, otherwise than by the origin of his contract, one of the judges in the majority agreed with those in the minority on the former ques. tion, that the discharge was not available in an action brought by a citizen of another state, either in the courts of the United States, or of any other state than that in which the discharge was obtained. So that the decision in favour of state insolvent laws impairing the obligation of subsequent contracts, is restricted to cases in which the contract was made within the state, and between citizens of the same state, or aliens, but is sought to be enforced in the courts of that state in which the law was passed.*
* That a state law may be retrospective in its character, and
II. The other limitations on the state powers are those in which the prohibition is qualified, and restrict a state, without the consent of Congress, from laying “any imposts or duties on imports or exports, except what may be absolutely necessary” for executing its inspection laws; from laying any duty on tonnage ; keeeping troops or ships of war in time of peace; entering into any agreement or compact with another state, or with a foreign power, or from engaging in war, unless actually invaded, or in such imminent danger of invasion as will not admit of delay.
1st. The restraint on the power of the states as to imports and exports is enforced by all the arguments which prove the necessity of submitting the regulation of commerce to the General Government. From the vast inequality between the different states devest private rights, without violating the Federal Constitution, unless it also impairs the obligation of contracts, was affirmed, more recently, by the Supreme Court of the United States, in á case brought up on appeal from the highest court of Massachusetts. The Legislature of that state had granted to Harvard College the liberty and power of disposing of a ferry from Charlestown to Bos. ton, and of receiving a rent for it. Afterward the Legislature incorporated a company to erect a bridge over Charles River, at the place where the ferry had been established, the company paying annually to the college a certain sum of money. The charter gave the company the right to take tolls for forty years, and afterward extended it to seventy. Before the forty years expired, the Legis. lature authorized the erection of another bridge, so near the first as injuriously to affect its tolls. The proprietors of the first bridge applied to the Massachusetts Court to restrain by injunction the construction of the second bridge; but the court dismissed the bill, and the case was carried by appeal to the Supreme Court of the United States, on the ground that the first charter was a contract, and the grant of the second a violation of it. The decree of the Massachusetts court was affirmed; and in giving its opinion, the Supreme Court observed, that “a uniform course of action, in. volving the right to the exercise of an important power by the state government for half a century, and this almost without question, was not satisfactory evidence that the power was rightfully exercised.”—Vide 11 Peters's Rep., 257.
as to commercial advantages, few subjects were viewed with deeper interest, or excited greater irritation, than the manner in which the several states exercised, or seemed under the Confederation disposed to exercise, the power of laying duties on imports. From motives which were thought sufficient by the Convention, the general power of taxation, indispensably necessary as it was, and jealous as the states were of any encroachments upon it, was so far abridged as to forbid their touching imports or exports, with the single exception specified in the Constitution ; and they were thus restrained, from a general conviction that the interest of all would be promoted by placing the whole subject under the exclusive control of Congress.
In considering the power of Congress to regulate commerce, I referred to a decision of the Supreme Court, declaring unconstitutional an act of a State Legislature requiring importers of foreign goods, and the venders of the same at wholesale, to obtain a license from the state, and pay a sum of money
for the same to the state treasury.
This act was also declared to be repugnant to the prohibition of the states from laying duties on exports and imports without the consent of Congress. An impost or duty on imports is a custom or tax levied upon articles brought into the country for sale or use; and is most usually secured before the importer is allowed to exercise his right of ownership over them, because evasions of the revenue laws can be prevented more certainly by executing them while the articles are in the custody of the government. It would not, however, be less an impost on the articles if it were levied on them after they were landed. The policy,
* 12 Wheaton, 419.
and consequent practice of levying or securing the duty before or on entering the port, does not limit the exercise of the power to that period ; and, consequently, the prohibition on the states is not limited to that state of circumstances, unless the true meaning of the clause so confines it. If we resort either to technical authority or to common usage for the meaning of the term “imports,” we find it signifies“ the things imported,” or the articles themselves, which are brought into the country. It is not in its literal sense confined to a duty levied while the article is entering the country, but extends to a tax levied after it has actually entered it. Again, if we look to the objects of the prohibition, we find that there is no difference, in effect, between the power to prohibit the sale of an article and a power to prohibit its introduction. The one is a necessary consequence of the other. No goods would be imported if none could be sold; nor can any object of any description be accomplished with equal certainty by laying a duty on the thing imported in the hands of the importer; and it is obvious that the same power which imposes a light duty might impose one amounting to a prohibition. The prohibition on the states to lay a duty on imports may, indeed, come in conflict with their acknowledged power to tax persons and property within their jurisdiction ; and although this power, and the restriction of it, are easily distinguishable when they do not approach each other, yet they may approach so nearly as to perplex us in marking the distinction between them. The distinction, nevertheless, exists, and must be defined as the cases in which it exists arise. It was deemed sufficient, in the case referred to, to say generally, that when the importer has so dealt with the thing imported that it has become incorporated and mixed up with the
mass of property in the country, it has, perhaps, lost its distinctive character as an import, and become subject to the taxing power of the state ; but while it continues the property of the importer, and remains in his warehouse in the original form or package in which it was imported, a tax upon it is too plainly a duty on imports to escape this prohibition of the Constitution.
The general power of taxation is retained by the states, without being abridged by the grant of a similar
power to the Government of the Union, and is to be concurrently exercised by both governments, under their respective constitutions; but, from the paramount authority of the General Government, the states are restrained, without any express prohibition, from any exercise of their taxing power, which, in its nature, is incompatible with, or repugnant to, the constitutional laws of the Union. As they have no power, by taxation or otherwise, to retard, impede, burden, or in any manner to control the operation of constitutional laws enacted by Congress to carry into execution any of the powers vested in the Federal Government, they cannot tax certificates issued by it for money borrowed on the credit of the United States, nor the stock of a bank chartered by Congress; the latter is an instrument, and the former incidents of a power essential to the fiscal operations of the Union.
2d. The other qualified prohibitions have their origin in the same general policy which absolutely forbids any state from entering into any treaty, alliance; or confederation, and from granting letters of marque and reprisal ; and they are supported by the same reasoning which establishes the propriety of confiding everything relative to the power of declaring war to the exclusive direction and control of the