tended to be, nor are they to be construed with other powers before vested in the state governments.(a) As the state governments retained the right to make all such laws as they might think proper within the ordinary functions of the legislature, if not inconsistent with the powers vested exclusively in the federal government, they only look to that instrument for restrictions upon, and not for grants of legislative authority, whilst the national legislature are dependent entirely upon the provisions of the federal constitution for all the powers which it possesses, and, like the government under which it exists, it can exercise no powers except those expressly granted or arising by necessary implication.

§ 182. In order to arrive at an accurate and comprehensive view of the powers of, and restrictions upon congress, it will be necessary in the first place to advert to the terms of the grant itself, and to the judicial construction which it has received since its adoption. In doing so, we shall take up each clause of the grant, and then in connection with it allude to the construction it has received, without any attempt on our part either to discuss the question of the accuracy or inaccuracy of such construction, or to review the conflict of opinion between the judiciary and those master spirits of the age of its adoption, who have reflected so much light upon this intricate and most important question of interest to the American nation. We shall confine ourselves to the text of the constitution and to judicial construction, and studiously avoid adopting the opinion either of political writers or commentators upon this branch of American jurisprudence.

§ 183. The express, delegated powers of Congress are defined in the 8th section of Article I. of the Constitution

(a) 3 Wash. C. C. 313.

of the United States, which declares that Congress shall have power-1st. To lay and collect duties, taxes, imposts and excises, to pay the debts and provide for the common defence and general welfare of the United States; but all duties, imposts and excises, shall be uniform throughout the United States.

§ 184. In Hylton v. The United States,(a) the question involved in the case was, whether the law of congress of 5th June, 1794, entitled "An act to lay duties upon carriages for the conveyance of persons," was unconstitutional and void. It was claimed that it was; for that the tax was direct, and should have been laid according to the census; that it was not laid by that rule of apportionment, but by the rule of uniformity prescribed in the case of duties, imposts, &c. By the second section of the first article of the constitution, direct taxes were to be apportioned among the several states according to their numbers. By section 9, no capitation or other direct tax, was to be laid unless in proportion to the census. It was held, that the great object of the constitution was to give congress a power to lay taxes adequate to the exigences of the government, but they were to observe two rules in imposing them, to wit: uniformity when they laid duties, imposts and excises, and apportionment according to the census when they laid a direct tax. Other species of taxes, not direct, and not included in the words duties, imposts and excises, might be laid by the rule of uniformity or not, as congress thought proper. That if only these four species of taxes were meant, the general power to lay taxes was unnecessary. If it had been intended that congress only should lay those four taxes, &c., the language would have been, "Congress shall have power to lay and collect direct taxes and

(a) 3 Dallas, 171.

duties, imposts and excises. The first shall be laid according to the census, and the last three shall be uniform throughout the United States." The power in this 8th section to lay and collect taxes, includes a power to lay direct taxes whether capitation or any other. And also duties, imposts and excises, and every other species and kind of tax whatever, and called by any other name. Duties, imposts and excises, were enumerated after the general and comprehensive term, taxes, only for the purpose of declaring that they were to be laid by the rules of uniformity. A general power was given to collect taxes of every kind or nature without any restraint, except only on exports; and two rules are prescribed for their government, uniformity and apportionment. Three kinds of taxes, to wit: duties, imposts and excises, by the first rule, and capitation or other direct taxes by the second rule. That some taxes might be direct and indirect at the same time, but no taxes were contemplated as direct taxes, but only such as congress should lay in proportion to the census. The rule of apportionment was only to be adopted in such cases where it could reasonably apply, and the subject taxed must determine the application of the rule. It was conceded that if this was a direct tax it would be unconstitutional, because it had been laid pursuant to the rule of uniformity, and not to the rule of apportionment. On the one hand it was contended, that as a tax on carriages did not come within the words duties, imposts or excises, it was a direct tax; and on the other hand, that as this tax is not a direct tax, it must be a duty or excise. Patterson, Justice, held the term taxes was generical, and was made use of to vest in congress plenary authority in all cases of taxation. The general division of taxes was into direct and indirect; indirect stands opposed to direct. There might be an indirect tax on a particular article, that could not be comprehended within the description

of duties, imposts and excises. In such cases it was comprehended under the general denomination of taxes. The term tax was a genus, and included, 1. Direct taxes. 2. Duties, imposts, and excises. 3. All other classes of an indirect tax, and not within any of the classifications enumerated above.

§ 185. Iredell, J., held, that congress possessed the power of taxing all taxable objects without limitation, with the particular exception of a duty on exports. There were only two restrictions on the exercise of this authority:

1. All direct taxes must be apportioned.

2. All duties, imposts or excises, must be uniform.

That this tax could not be considered within the meaning of the constitution, a direct tax, nor was it comprehended within the terms duties, imposts or excises; hence, there was no provision in the constitution one way or the other, so that it was left to such an operation of the powers as if the authority to lay taxes had been general in all instances, without saying any thing about uniformity or apportionment. As all direct taxes must be apportioned, the constitution contemplated none as direct but such as could be apportioned.] That this could not be apportioned, and therefore was not a direct

tax.

§ 186. It may not be amiss in this connection to remark, that it has been questioned whether in cases where this power of taxation vested in congress, it was not to be exercised alone by it exclusive of the state sovereignties. The principle now seems well settled that in consequence of the supremacy of the laws of congress, and the necessary consequence of that supremacy, its instruments employed in the execution of its powers, are exempt from taxation by the state governments. These decisions rest upon the principle, that although the sovereignty of the state extends to

every thing which exists by its own authority, or is introduced by its permision; it does not extend to those means which are employed by congress to carry into execution powers conferred upon that body by the people of the United States. (a)

§ 187. In the case of Loughborough v. Blake,(b) it became a question whether, under this section of the constitution, congress had the power to levy a direct tax on the District of Columbia. It was held that it had; that the grant was general, without limitation as to place; that it consequently extended to all places over which the government extends. If there could have been a doubt of this, it would be removed by the subsequent words which modified the grant. These were-" But all duties, imposts and excises, shall be uniform throughout the United States." It could not be contended, that the modification of the power conferred extends to places to which the power itself did not extend. That this power thus modified, must be exercised throughout the United States. The District of Columbia, or the territory west of the Missouri, was not less within the United States than New York or Pennsylvania, and it was not less necessary on the principle of the constitution, that this uniformity should be observed in the one, than in the other. Since the power to lay and collect taxes, which includes direct taxes, is co-extensive with the power to lay and collect duties, &c., and since this extends throughout the whole United States, the power to impose direct taxes also extends throughout the whole United States.

§ 188. The second grant of power to congress is-TO BORROW MONEY ON THE CREDIT OF THE UNITED STATES.

(a) 4 Pet. R. 564; 4 Wheat. 316; 4 Cond. 468; 9 Wheat. 738; 5 Cond.

(b) 5 Wheat. 317; 4 Cond. 660.