Imatges de pàgina
PDF
EPUB

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

General Government. Treaties of alliance, for purposes of peace or war, of external political dependance, or general commercial privileges; treaties of confederation for mutual government, political cooperation, or the exercise of political sovereignty, or for conferring internal political jurisdiction, are absolutely prohibited to the states. But compacts and agreements, which apply to the mere private rights of sovereignty, such as questions of boundary between a state and a foreign province, or another state; interests in land situate within their respective boundaries, and other internal regulations for the mutual accommodation of states bordering on each other, may be entered into by the respective states, with the consent of Congress. A total interdiction of such agreements or contracts might have been attended with permanent inconvenience, or public injury to the states; and the consent of Congress to their being entered into is required to guard against every infringement of the national rights, which might be involved in them.

As the maintenance of an army and navy by a state in time of peace might produce jealousies and alarm in neighbouring states, and in foreign nations bordering on its territory, the states are prohibited from such establishments, unless with the consent of the General Government. But as a state may be so situated in time of war as to render a military force necessary to resist an invasion, of which the danger may be too imminent to admit of delay in organizing it, the states have a right to raise troops, and fit out fleets for its own safety in time of war, without obtaining the consent of Congress.

ON THE

LECTURE XII.

PROVISIONS CONTAINED IN THE CONSTITU

TION FOR GIVING EFFICACY ΤΟ THE FEDERAL POWERS.

THE sixth, and last class of powers enumerated in the Constitution, consists of certain provisions by which efficiency is given to the rest. The first of these is the power "to make all laws necessary and proper for carrying the foregoing powers

into execution.'

I. It was remarked by the authors of "The Federalist," that "without the substance of this power, the whole Constitution would be a dead letter;" and, as few parts of that instrument had been assailed with more intemperance, they justly inferred that "it was the form only of the provision that was objected to, and they accordingly proceeded to consider" whether a better one could have been substituted. "There were four other methods," they observe, "which the Convention might have pursued: they might have copied the article of the Confederation which prohibited the exercise of any power not expressly delegated; they might have attempted a positive enumeration of the powers comprehended under the general terms necessary and proper ; they might have attempted a negative enumeration of them, by specifying the powers excepted from the general definition; or they might have been altogether silent on the subject, and left these necessary and proper powers to construction and inference."

A A

Had the first method been adopted, it is evident that the new Congress, like their predecessors, would have been continually exposed to the alternative, either of construing the term "expressly" with so much rigour as to disarm the government of all real authority, or with so much latitude as altogether to destroy the force of the restriction. It would be easy to show, were it necessary, that no important power delegated by the Articles of Confederation was or could have been executed by Congress, without recurring, more or less, to the doctrine of construction or implication. As the powers delegated under the new system were more extensive, the government, which was to administer it, would have found itself still more frequently driven to the dilemma of doing nothing, or violating the Constitution, by exercising powers indispensably necessary, but not expressly granted.

Had the Convention made a positive enumera tion of the powers necessary and proper for carrying the other powers into effect, it would have involved a complete digest of laws on every subject to which the Constitution relates; accommodated, too, not only to the existing state of things, but to all possible changes which futurity might produce. Had they attempted to enumerate the particular powers or means not necessary or proper for carrying the general powers into exe cution, the undertaking would have been no less chimerical, and would, moreover, have been lia ble to this farther objection, that every defect in the enumeration would have been equivalent to a positive grant of authority. If, to avoid this consequence, they had attempted a partial enumeration of exceptions, and described the

« AnteriorContinua »