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tion or character of this bank; which, as to all its 1819. rights and powers, would be exactly what it now is
10 M‘Culloch if the government was to seek and obtain all this v.
State of Maconvenience from some other source; if the government ryland. were to withdraw its patronage, and sell out its stock. How,then, can such an institution claim the immunities of sovereignty; nay, that sovereignty does not possess ? for a sovereign, who places his property in the territory of another sovereign, submits it to the demands of the revenue, which are but justly paid, in return for the protection afforded to the property. General Hamilton, in his report on this subject, so far from considering the bank a public institution, connected with, or controlled by the government, holds it to be indispensable that it should not be so. It must be, says he, under private, not public, direction ; under the guidance of individual interest, not public policy. Still, he adds, the state may be holder of part of its stock; and, consequently, (what! it becomes public property ? no!) a sharer of the profits. He traces no other consequence to that circumstance. No rights are founded on it; no part of its utility or necessity arises from it. Can an institution, then, purely private, and which disclaims any public character, be clothed with the power and rights of the government, and demand subordination from the State government, in virtue of the federal authority, which it undertakes to wield at its own will and pleasure ? Shall it be private in its direction and interests; public in its rights and privileges: a trading money-lender in its business; an uncontrolled sovereign in its powers ? If the whole bank, with all its property and business,
1819. belonged to the United States, it would not, thereMa fore, be exempted from the taxation of the States.
* To this purpose, the United States and the several State of Maryland.
^ States must be considered as sovereign and indepen
dent; and the principle is clear, that a sovereign putting his property within the territory and jurisdiction of another sovereign, and of course under his protection, submits it to the ordinary taxation of the State, and must contribute fairly to the wants of the revenue. In other words, the jurisdiction of the State extends over all its territory, and every thing within or upon it, with a few known exceptions. With a view to this principle, the constitution has provided for those cases in which it was deemed necessary and proper to give the United States jurisdiction within a State, in exclusion of the State authority; and even in these cases, it will be seen, it cannot be done without the assent of the State. For a seat of government, for forts, arsenals, dock-yards, &c. the assent of the State to surrender its jurisdiction is required ; but the bank asks no consent, and is paramount to all State authority, to all the rights of territory, and demands of the public revenue. We have not been told, whether the banking houses of this corporation, and any other real estate it may acquire, for the accommodation of its affairs, are, also, of this privileged order of property. In principle, it must be the same; for the privilege, if it exists, belongs to the corporation, and must cover equally all its property. It is understood, that a case was lately decided by the Supreme Court of Pennsylvania, and from which no appeal has been taken, on the part of the United States to this Court, to show that United States' pro- 1819. perty, as such, has no exemption from State taxa- M Culloch tion A fort. belonging to the federal government, w i e near Pittsburgh, was sold by public auction; the usual ryland. auction duty was claimed, and the payment resisted, on the ground that none could be exacted from the United States. The Court decided otherwise. In admitting Louisiana into the Union, and so, it is believed, with all the new States, it is expressly stipulated, “ that no taxes shall be imposed on lands, the property of the United States." There can, then, be no pretence, that bank property, even belonging to the United States, is, on that account, exonerated from State taxation.
Third. If, then, neither the nature of the property, nor the interest the United States may have in the bank, will warrant the exemption claimed, is there any thing expressed in the constitution to limit and control the State right of taxation, as now contended for? We find but one limitation to this essential right, of which the States were naturally and justly most jealous. In the 10th section of the 1st article, it is declared, that “no State shall, without the consent of Congress, lay any imposts or duties, on imports or exports, except what may be absolutely necessary for executing its inspection laws.” And there is a like prohibition to laying any duty of tonnage. Here, then, is the whole restriction, or limitation, attempted to be imposed by the constitution, on the power of the States to raise revenue, precisely in the same manner, from the same subjects, and to the same extent, that any sovereign and indepen
1819. dent State may do; and it never was understood by
those who made, or those who received the constituM.Culloch
tion, that any further restriction ever would, or could, State of Ma- m
be imposed. This subject did not escape either the ryland.
assailants or the defenders of our form of government; and their arguments and commentaries upon the instrument ought not to be disregarded in fixing its construction. It was foreseen, and objected, by its opponents, that, under the general sweeping power given to Congress, “ To make all laws which shall be necessary and proper, for carrying into execution the foregoing powers,” &c. the States might be exposed to great dangers, and the most humiliating and oppressive encroachments, particularly in this very matter of taxation. By referring to the Federalist, the great champion of the constitution, the objections will be found stated, together with the answers to them. It is again and again replied, and most solemnly asserted, to the people of these United States, that the right of taxation in the States is sacred and inviolable, with the sole exception of duties on imports and exports ;" that “they retain the authority in the most absolute and unqualified sense; and that an attempt on the part of the national government to abridge them in the exercise of it, would be a violent assumption of power, unwarranted by any article or clause of its constitution.” With the exception mentioned, the Federal and State powers of taxation are declared to be concurrent ; and if the United States are justified in taxing State banks, the same equal and concurrent authority will justify the State in taxing the Bank of the United States, or any
other bank. The author begins, No. 34, by saying, 1819. “I flatter myself it has been clearly shown, in my om
M'Culloch last number, that the particular States, under the v. proposed constitution, would bave co-EQUAL autho
he State of Man
ryland. rity with the Union, in the article of revenue, except as to duties on imports." Under such assurances from those who made, who recommended, and carried, the constitution, and who were supposed best to understand it, was it received and adopted by the people of these United States; and now, after a lapse of nearly thirty years, they are to be informed that all this is a mistake, all these assurances are unwarranted, and that the Federal Government does possess most productive and important powers of taxation, neither on imports, exports, or tonnage, but strictly internal, which are prohibited to the States. The question then was, whether the United States should have any command of the internal revenue; the pretension now is, that they shall enjoy exclusively the best portion of it. The question was then quieted by the acknowledgment of a co-equal right; it is now to be put at rest by the prostration of the State power. The Federal Government is to hold a power by implication and ingenious inference from general words in the constis tution, which it can hardly be believed would have been suffered in an express grant. If, then, the people were not deceived when they were told that, with the exceptions mentioned, the State right of taxation is sacred and inviolable ; and it be also true
a Letters of Publius, or The Federalist, Nos. 31–36. VOE. IV.