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splendor of eloquence, and strength of argument, seldom, if ever, surpassed, have been displayed. The power of congress to create, and of course to continue, the bank, was the subject of the preceding part of this opinion, and is no longer to be considered as questionable. That the power of taxing it by the states may be exercised so as to destroy it, is too obvious to be denied. But taxation is said to be an absolute power, which acknowledges no other limits than those expressly prescribed in the constitution, and like sovereign power of every other description, is trusted to the discretion of those who use it. But the very terms of this argument admit that the sovereignty of the state, in the article of taxation itself, is subordinate to, and may be controlled by, the constitution of the United States. How far it has been controlled by that instrument must be a question of construction. In making this construction, no principle not declared, can be admissable, which would defeat the legitimate operations of a supreme government. It is of the very essence of supremacy to remove all obstacles to its action within its own sphere, and to modify every power vested in subordinate governments, as to exempt its own operations from their own influence. This effect need not be stated in terms. It is so involved in the declaration of supremacy, so necessarily implied in it, that the expression of it could not make it more certain. We must, therefore, keep it in view while construing the constitution. The argument on the part of the state of Maryland is not that the states may directly resist a law of congress, but that they may exercise their acknowledged powers upon it, and that the constitution leaves them this right in the confidence that they will not abuse it. Before we proceed to examine this argument and to subject it to the test of the constitution, we must be permitted to bestow a few considerations on the nature and extent of this original right of taxation, which is acknowledged to remain with the states. It is admitted that the power of taxing the people and their property is essential to the very existence of government, and may be legitimately exercised on the objects to which it is applicable, to the utmost extent to which the government may chuse to carry it. The only security against the abuse of this power, is found in the structure of the government itself. In imposing a tax the legislature acts upon itself and upon its constituents. This is in general a sufficient security against erroneous and oppressive taxation.
The people of a state, therefore, give to their government a right of taxing themselves and their property, and as the exigencies of government cannot be limited, they prescribe no limits to the exercise of this right, resting confidently on the interest of the legislator, and on the influence of the constituents over their representative, to guard them against its abuse. But the means employed by the government of the union have no such security, nor is the right of a state to tax them sustained by the same theory. Those means are not given by the people of a particular state, not given by the constituents of the legislature which claim the right to tax them, but by the people of all the states. They are given by all, for the benefit of all—and upon theory, should be subjected to that government only which belongs to all.
It may be objected to this definition that the power of taxation is not confined to the people and property of a state. It may be exercised upon every *bject brought within its jurisdiction.
This is true. But to what source do we trace this right? It is obvious that it is an incident of sovereignty, and is co-extensive with that to which it is an incident. All subjects over which the sovereign power of a state extends are objects of taxation; but those over which it does not extend, are, upon the soundest principles, exempt from taxation. This proposition may almost be pronounced self-evident. The sovereignty of a state extends to everything which exists by its own authority, or is introduced by its permission, but does not extend to those means which are employed by congress to carry into execution powers conferred on that body by the people of the United States? We think it demonstrable that it does not. These powers are not given by the people of a single state. They are given by the people of the United States, to a government whose laws made in pursuance of the constitution, are declared to be supreme—consequently, the people of a single state cannot confer a sovereignty which will extend over them. If we measure the power of taxation residing in a state, by the extent of sovereignty which the people of a single state possess, and can confer on its government, we have an intelligible standard applicable to every case to which the power may be applied. We have a principle which leaves the power of taxing the people and property of a state unimpaired: which leaves to a state the command of all its resources; and which places beyond its reach, all those powers which are conferred by the people of the United States on the government of the Union, and all those means which are given for the purpose of carrying those powers into execution. We have a principle which is safe for the states, and safe for the Union. We are relieved, as we ought to be, from clashing sovereignty, from interfering powers: from a repugnancy between a right in one government to pull down, what there is an acknowledged right in another to build up; from the incompatibility of a right in one government to destroy what there is a right in another to preserve. We are not driven to the perplexing enquiry, so unfit for the judicial department, what degree of taxation is the legitimate use, and what degree may amount to the abuse, of the power. The attempt to use it on the means employed by the governments of the union, in pursuance of the constitution, is itself an abuse, because it is the usurpation of a power which the people of a single state cannot give. We find then, on just theory, a total failure of this original right to tax the means employed by the government of the Union for the execution of its powers. The right never existed, and the question whether it has been surrendered, cannot arise. But, waving this theory for the present, let us resume the enquiry whether this power can be exercised by the respective states, consistently with a fair construction of the constitution?
That the power to tax involves the power to destroy; that the power to destroy may defeat and render useless the power to create; that there is a plain repugnance in conferring on one government a power to controul the constitutional measures of another, which other, with respect to those very measures, is declared to be supreme over that which exerts the controul, are propositions not to be denied. But all inconsistencies are to be reconciled by the magic word confidence. Taxation, it is said, does not necessarily and unavoidably destroy. To carry it to the excess of destruction, would be an abuse, to presume which would banish that confi
denee which is essential to all governments. But is
this a case of confidence? Would the people of any one state trust those of another with a power to controul the most insignificant operations of their state government; we know they would not. Why then should we suppose that the people of any one state should be willing to trust those of another with a power to controul the operations of a-government to which they have confided their most important and most valuable interests? In the legislature of the union alone, are all represented. The legislature of the Union alone, therefore, can be trusted by the people with the power of controuling measures which concern all, in the confidence that it will not be abused. This, then, is not a case of confidence, and we must consider it as it really is, If we apply the principle for which the state of Maryland contends, to the coustitution generally, we shall find it capable of changing totally the character of that instrument. We shall find it capable of arresting all the measures of the government, and of prostrating it at the foot of the states. The Ame: rican people have declared their Constitution, and the laws made in pursuance thereof, to be supreme; but this principle would transfer the supremacy in fact to the states. If the states may tax one instrument employed by the government in the execution of its powers, they may tax any and every other instrument. They may tax the mail, they may tax the mint, they may tax patent rights, they may tax the papers of the custom-house, they may tax judicial process, they may tax all the means employed by the government, to an excess which would defeat all the ends of government. This was not intended by the American people. They did not design to make their government dependent on the states. Gentlemen say, they do not claim the right to extend state taxations to these objects. They limit their pretentions to property. But on what principle is this distinction made? Those who make it have furnished no reason for it, and the principle for which they contend denies it. They contend that the power of taxation has no other limit than is found in the 10th section of the 1st article of the constitution; that, with respect to everything else, the power of the state is supreme, and admits of no control. If this be true, the distinction between property and other subjects to which the power of taxation is applicable, is merely arbitrary, and can never be sustained. This is not all. If the controling power of the states be established, if their supremacy as to taxation be acknowledged, what is to restrain their exercising this control in any shape they may please to give it? Their sovereignty is not confined to taxation, That is not the only mode in which it might be displayed, The question is, in trutha question of supremacy; and if the right of the states to tax the means employed by the general government be conceded, the declaration that the constitution, and the laws made in pursuance thereof shall be the supreme law of the land, is empty and unmeaning declamation. In the course of the argument, the Federal'st has een quoted; and the opinions expressed by the allthors of that work have been justly supposed to be entitled to great respect in expounding the constitution. No tribute can be paid to their worth which exceeds their merit; but in applying their opinions to the cases which may arise in the progress of our government, a right to judge of their correctness must be retained, and to understand the argument, we must examine the proposition it maintains and the objections against which it is directed. The subject of those numbers, from which passages
have been eited, is the unlimited power of taxation which is vested in the general government. The objection of this unlimited power, which the argument seeks to remove,is stated with fullness and clearness. It is, “that an indefinite power of taxa‘tion in the latter (the government of the union) “might, and probably would, in time, deprive the “former (the government of the states) of the means “of providing for their own necess ties; and would ‘subject them entirely to the mercy of the national * legislature. As the laws of the union are to be‘come the supreme laws of the land; as it is to have ‘power to pass all laws that may be necessary for ‘carrying into execution the authorities with which it “is proposed to vestit; the national government might “at any time abolish the taxes imposed for state ob‘jects upon the pretence of an interference with its ‘own. It might allege a necessity for doing this, in ‘order to give efficacy to the national revenues; and ‘thus all the resources of taxation might, by de‘grees, become the subjects of federal monopoly, ‘to the entire seclusion and destruction of the state • governments.” The objections to the constitution which are noticed in these numbers, were to the undefined power of the government to tax, not to the incidental privilege of exempting its own measures from state taxation. The consequences apprehended from this undefined power, were: that it would absorb all the objects of taxation, “to the exclusion and destruction of the state governments.” The arguments of the Federalist are intended to prove the fallacy of these apprehensions; not to prove that the government was incapable of executing any of its powers, without exposing the means it employed to the embarrassments of state taxation. Arguments urged against these objections, and these apprehensions, are to be understood as relating to the points they mean to prove. Had the authors of those excellent essays been asked, whether they contended for that construction of the constitution, which would place within the reach of the states those measures which the government might adopt for the execution of its powers, no man, who has read their instructive pages, will hesitate to admit, that their answer must have been in the negative. It has also been insisted, that, as the power of taxation in the general and state governments is acknowledged to be concurrent, every argument which would sustain the right of the general government to tax banks chartered by states, will equally sustain the right of the states to tax banks chartered by the general government. But the two cases are not on the same reason.-The people of all the states have created the general government; and have conferred upon it the greneral power of taxation. The people of all the states, and the states themselves, are represented in congress, and by their representatives exercise this power. When they tax the chartered institutions of the states, they tax their constituents; and these taxes must be uniform. But, when a state taxes the operations of the government of the United States, it acts upon institutions created, not by their own constituents, but by people over whom they claim no control. It acts upon the measures of a government created by others, as well as ther. selves, for the benefit of others in common wit, themselves. The difference is that which always exists, and always must exist, between the action of the whole, or a part, and the action of a part and the whole—between the laws of a government declared to be supreme, and those of a government.
which, when in opposition to those laws, is not surenne. But if the full application of this argument could be admitted, it migot bring into question the right of congress to tax the state banks, and could not prove the right of the states to tax the bank of the United States. The court has bestowed on this subject its most deliberate consideration. The result is a conviction that the states have no power, by taxation, or otherwise, to retard, impede, burden, or in any manner control the operations of the constitutional laws enacted by congress to carry into execution the powers, vested in the general government. This is, we think, the unavoidable consequence of that supremacy, which the constitution has declared. We are unanimously of opinion, that the law passed by the leg slature of Maryland, imposing a tax on the bank of the United States, is unconstitutional and void. This opinion does not deprive the states of any resources which they originally possessed. It does not extend to a tax paid by the real property of the bank, in common with the other real property within the state, nor to a tax imposed on the interest which the citizens of Maryland may hold in this institution, in common with other property of the same description throughout the state. But this is a tax on the operations of the bank, and is consequently a tax on the operation of an instrument employed by the government of the union, to carry its powers into cxecution. Such a tax must be unconstitutional. The judgment of the court of appeals of the state of Maryland, is therefore erroneous, and must be reversed, and a mandate be issued to that court directing a judgment to be critered for the plaintiff in criol". ..
State Insolvent Laws.
Great interest having been excited respecting the recent decisions of the supreme court, on thc subject of the state bankrupt and insolvent laws, we have obtained a statement of the points decided by the court, the accuracy of which may be depended on, and which we now lay before our readers. The opinions at large, with the cases, and the argument of counsel, will very soon appear in the 4th vol. of Mr. Wheaton's Reports. It would be obviously impossible to include all these in the compass of a newspaper; and we have, therefore, limited ourselves to a brief analysis of time opinions of the court.
The first case on this subject which was heard and determined by the court, was that of Sturges against Crowninshield. This was an action of assumpsit against the defendant as promissor upon two promissory notes, both dated at New-York, 22d March, 1811, for the sum of $771 86 each, and payable to the plaintiff, one on the first of August, and the other on the fifteenth of August, 1811. The defendant pleaded his discharge under “an act for the benefit of insolvent debtors and their creditors,” passed by the legislature of New-York, the third day of April, 1811. After stating the provisions of the act, the defendant’s plea avoored His compliance with them, and that he was discharged, and a certificate given to him the day of 1812.
To this plea there was a general demurrer and joinder. At the October term of the circuit court, 1816, this cause came on to be arg::cd and heard on the demurrer, and the following questions arose, viz:
1. Whether, since the adoption of the constitutio. of the U. States, any state has authority to pass bankrupt law, or whether the power is exclusively vested in the congress of the U. States? 2. Whether the act of New York, passed the third day of April, 1811, and stated in the plea in this case, is a bankrupt act within the meaning of the constitution of the U. States? S. Whether the act aforesaid is an act or law inpairing the obligation of contracts, within the meaning of the constitution of the U. States? 4. Whether the plea is a good and sufficient bar of the plaintiff’s action? And, after hearing counsel upon the questions, the judges of the circuit court were opposed in o, nich thereupon; and, upon motion of the plaintiff’s counsel, the questions were certified to the supreme court, for their final decision. On the first question, the supreme court were of opinion, that, until the power, contained in the constitution of the U. States, to pass uniform laws throughout the union, on the subject of bankruptcies, be exercised by congress, the states have authority to pass a bankrupt law, provided such law contains no principle violating the 10th section of the 1st article of the constitution of the U. States, which declares that “no state shall pass any law impairing the obligation of contracts.” This opinion, of course, rendered it unnecessary to consider the 2nd question. On the 3d question, the court were of opinion, that the act of New York, which was pleaded in this case, (and which not only liberates the person of the debtor, but discharges him from all liability for any debt previously contracted, on his surrendering his property in the manner it prescribes) is an act or law impairing the obligation of contracts within the meaning of the 10th section of the 1st article of the constitution of the U. States. In delivering the judgment of the court, the chief justice stated, that, as to what was intended by the framers of the constitution when they used the terms “any law inipairing the obligation of contracts,” it would seem difficult to substitute words which are more intelligible, or less liable to misconstruction. A contract is an agreement in which a party undertakes to do or not to do a particular thing. The law binds him to perform his undertaking, and this is, of course, the obligation of a contract. In the case at bar, the defendant had given his promissory note to pay the plaintiff a sum of money on or before a certain day, The contract binds him to pay that sum on that day, and this is its obligation. Any law, which re. leases a part of this obligation, must, in the literal sense of the word, impair it. Much more must a law impair it which makes it totally invalid, and entirely discharges it. It was not necessary, nor would it have been safe' for the framers of the constitution to enumerate particular objects to which the principle they intended to establish should apply. The principle was the inviolability of contracts. This principle was to be protected in whatever formit might be assail. ed. To what purpose should the convention enumerate the particular inodes of violation, which should be forbidden, when it was intended to forbid all? Had an enumeration of all the laws which might vio. late contracts been attempted, the provision must have been less complete and involved in more perplexity than it now is. The plain and simple decla. ration, that no state shall pass any law impairing the obligation of contracts, includes insolvent laws, and all other iaws, so far as they infringe the principle the convention intended to hold sacred, and no à". ther. But, the convention did not intend to prohibit the passage of all insolvent laws. To punish honest insolvency by imprisonment for life, and to make this a constitutional principle, would be an excess of inhumanity, which would not readily be imputed to the illustrious patriots who framed our constitution, or to the people who adopted it. The distinction between the obligation of a contract, and the remedy given by the legislature to enforce that obligation, exists in the nature of things. The remedy may be modified as the legislative wisdom shall direct, without impairing the obligation of the contract. Confinement of the debtor may be a punishment for not performing his contract, or may he allowed as a means of inducing him to perform it. But the state may refuse to inflict this punishment, or may withhold this means, and leave the contract in full force. Imprisonment is no part of the contract, and simply to relieve the prisoner does not impair its obligation. - - The court also intimated that it had been contended at the bar, that this construction of the con i. would extend to statutes of limitation and ws against usury. The court did not think so. Statutes of limitation relate to the remedies which are furnished in the courts. They rather establish that certain circumstances shall amount to evidence that a contract has been performed, than dispense with its performance. But, if, in a state, where six years may be pleaded in bar to an action of assumpsit,a law should be passed declaring that contracts already in existence, and not barred by the statute, should be construed to be within it, there would be little doubt of its unconstitutionality. So with respect to he laws against usury. If the law be that no person shall take more than 6 per cent. per annum for the use of money, or that if more be reserved, the contract shall be void, a contract made thereafter reserving 7 per cent. would have no obligation in its commencement. But, if a law should declare that contracts already entered into and reserving the legal interest should be usurious and void, either in the whole or in part, it would impair the obligation the contract, and would be clearly unconstitutional.
Of course, the 4th question was resolved in the negative. - *
The next case which came on for argument on this subject, was that of .M.'. Millan against J.P.Meill. In this case, the debt was contracted in the year 1813, in the state of South Carolina, both the parties then residing there. The debtor removed to Louisiana, and obtained his discharge in 1815, under the insolvent act of that state passed in 1808. In 1817, a suit was commenced against him, by the creditor, in the district court of Louisiana. The discharge under the law of that state was pleaded in bar; the plea was determined to be insufficient; judgment was rendered for the plaintiff; and the case was brought, by writ of error, before the supreme court of the United States.
This court determined that the case was not distinguishable, in principle, from that of Sturges against Crowninshield; that the law of Louisiana, so far as it
.impannelled to try the cause. lowing facts appeared in evidence.
Interesting Law Case. From Thr NEw Yonk Evex ING Post. .New York, March 13–A very interesting application of the decision of the supreme court of the U. States, relative to the constitutionality of state insolvent laws, was made in a case brought by John Stuyversant against Jacob Barker, and tried yesterday before Mr. Justice Bartlett. Stuyversant, the plaintiff, demanded from Barker, the defendant, fif. teen dollars, deposited by the plaintiff in the defendant's bank. Barker, the defendant, admitted the deposit, but interposed a set-off against the plaintiff’s demand, of $53 13 cents, and claimed the balance.—A respectable jury of the 6th ward was . At the trial, the folIn 1817, the plaintiff opened an account at the defendant's bank, and after a short interval overdrew the bank $52 12 cents, and then obtained a discharge from all his debts under the insolvent act of this state. Some months after his discharge, he made a deposit of S15 in the defendant’s bank, which the defendant applied in part payment of the old account. The plaintiff produced his discharge in evidence, and his counsel insisted that it was a full bar to the defandant's set-off, and that the plaintiff was therefore entitled to the amount deposited. The defendant's counsel insisted, that the discharge was void, the law under which it was obtained being unconstitutional, inasmuch as it impaired the obligation of contracts, and that the defendant had, therefore, a right to ap. ply the deposit to the old debt. His honor, the justice, charged the jury strongly in favor of the plaintiff—but allowed them, on o suggestion of the defendant’s counsel, to take the constitution of the U. States and the state insolvent laws with them into the jury room, and directed them to find for the plaintiff the amount of his demand, if they consider. ed the law constitutional, and for the defendant the balance due him, if they considered it unconstitutional. - - The jury retired, and in about twenty minutes returned a verdict for the defendant, Barker, for 38 12, being the balance due. Tallmadge, counsel for plaintiff—Anthon for defendant.
We have London dates as late as the 21st of January. They do not contain one prominent item of news, though there are a number of interesting miscclkaneous articles in them, which shall be noticed at leisure.
The old queen of Spain, mother of the “adored Ferdinand,” and the queen of Wirtemburg, are deceased. - -
ExcLARD, &c. London, Jan. 21. This day at half an hour after two o'clock, the lord chancellor entered the house of lords, and proceeding directly to the table, received the oaths as peer of parliament. Soon after the noble lord retired for the purpose of putting on his robes, and returned to the house, accompanied by the arch bishop of Canterbury, the duke of Wellington, the earl of Harrowby, and the earl of Westnoreland, who, with the noble and learned lord,acted as the royal commissioners. "
The gentlemen usher of the black rod was then commanded to require the attendance of the house of commons at the bar, to hear the prince regent’s speech read. The commons soon after appeared at the bar, preceded by their speaker, when the lord chancellor, on the part of the commissioners, read the following speech:– “..My lords and gentlemen, “We are commanded by his royal highness the prince regent to express to you the deep regret which he feels in the continuance of his imajesty’s lamented indisposition. “In announcing to you the severe calamity with which it has pleased Divine Providence to visit tile prince regent, the royal family, and the nation, by the death of her majesty the queen of the united kingdom, his royal highness has commanded us to direct your attention to the consideration of such measures as this melancholy event has rendered necessary and expedient, with respect to the care of his majesty's sacred person. “We are directed to inform you, that the negociations which have taken place at Aix-la-Chapelle have led to the evacuation of the French territory by the allied armies. “The prince regent has given orders, that the convention concluded for this purpose, as well as the other documents connected with this arrangement, shall be laid before you; and he is persuaded that you will view with peculiar satisfaction the intimate union which so happily subsists among the powers who were parties to these transactions, and the unvaried disposition which has been manifested in all their proceedings for the preservation of the peace and tranquility of Europe. “The prince regent has commanded us further to acquaint you, that a treaty has been concluded between his royal highness and the government of the United States of America, for the renewal, for a further term of years, of the commercial convention now subsisting between the two nations, and for the amicable adjustment of several points of mutual importance to the interests of both countries; and as soon as the ratifications shall have been exchanged, his royal highness will give directions that a copy of this treaty shall be laid before you. “Gentlemen of the house of commons, “The prince regent has directed that the estimates for the current year shall be laid before you. “His royal highness feels assured, that you will learn with satisfaction the extent of reduction which the present situation of Europe, and the circumstances of the British empire, have enabled his royal highness to effect in the naval and military establishments of the country. “His royal highness has also the gratification of announcing to you, a considerable and progressive improvement of the revenue in its most important branches.
“...My lords and gentlemen,
“The prince regent has directed to be laid before you such papers as are necessary to shew the origin and result of the war in the East Indies.
“His royal highness commands us to inform you, that the operations undertaken by the governor general in council against the Pindarries were dictated by the strictest principles of self-defence; and that in the extended hostilities which followed upon those operations, the Mahrattah princes were in every instance the aggressors. Under the provident and skillful superintendance of the marquis of Hastings: the campaign was marked in every point by brilliant achievements and success; and his majes
ty's forces, and those of the East India company, (native as well as European,) rivalled each other in sustaining the reputation of the British arms. “The prince regent has the greatest pleasure in being able to inform you, that the trade, commerce and manufactures of the country are in a most flourishing condition. “The favorable change which has so rapidly taken place in the internal circumstances of the unit. ed kingdom affords the strongest proof of the soliduty of its resources. “To cultivate and improve the advantages of our present situation will be the object of your deliberations; and his royal highness has commanded us to assure you of his disposition to concur and co-operate in whatever may be best calculated to secure to his majesty's subjects the full benefits of that state of peace which, by the blessing of Providence, has been so happily re-established throughout Europe.” sp Ain. A London paper intimates that the marquis of Casa Yrujo has determined to end the contest in Mexico and South America at once, by sending out 40,000 men to different points—to raise the funds for which he projects the cession of the Balearic islands to Russia—the Canaries to Holland, Cuba to England, and Porto Rico and St. Domingo, with the Phillippines, to France! A tolerably extensive scheme—and that’s all. Great consternation prevailed at Corunna, on account of several privateers being on the coast of Galicia. The Lancasterian system of education has been translated into Spanish, under the patronage of the king of Spain. The British government has restored to Spain, a Spanish schooner which had been captured by the Union, a Venezulean privateer, and afterwards carried into Falmouth by a revenue cutter. CHRONICLE. Supreme court. The court adjourned on Friday last, on which day, Mr. Justice Johnson dehivered the opinion of the court in the case of certain goods taken out of the Spanish ship Caradad, affirming the decree of the inferior court, restoring the goods to the possession of the Carthagenian captors, upon the ground that the privateer, by whom they were originally captured, was cruizing under a commission from the republic or province of Carthagena, and was not fitted out in this country, nor had committed any other violation of the strict and impartial neutrality which is maintained by the United States, in the present war between Spain and her revolted colonies. General Jackson was to partake of a public dinner at Winchester, Va. on his way home, on Saturday last. The mail between Baltimore and Philadelphia is now carried in the Union line of steam boats and stages, by which its expedition and safety, while the navigation remains open, is greatly promoted. Flour is said to be selling at New Orleans at $5 per barrel ...Another mail robbery. The mail from Boon's Lick, &c. to St. Genevieve, Missouri, was recently robbed. The robber had not been taken when the account came away. Green peas were sold in Charleston market on the 6th instant, at the rate of twelve dollars per bushel. The large oren, noticed in our last, have been
weighed alive. The weight of the largest was 2960 lbs. of the other, upwards of 2700 lbs.