may be assured by past experience, that such a practice would be introduced by future contrivances; and both by that and a common knowledge of human affairs, that it would nourish unceasing animosities, and not improbably terminate in serious interruptions of the public tranquillity. To those who do not view the question through the medium of passion or of interest, the desire of the commercial States to collect, in any form, an indirect revenue from their uncommercial neighbors, must appear not less impolitic than it is unfair; since it would stimulate the injured party, by resentment as well as interest, to resort to less convenient channels for their foreign trade. But the mild voice of reason, pleading the cause of an enlarged and permanent interest, is but too often drowned, before public bodies as well as individuals, by the clamors of an impatient avidity for immediate and immoderate gain.”

§ 100. National control of commerce, the comprehensive

limitation.

Although the regulation of commerce was thus the great moving cause for the adoption of the Constitution, and was thoroughly discussed in the proceedings of the convention and in the Federalist, we find in neither any reference to any possible interference with the taxing power of the States growing out of such regulation. The far-reaching importance of national control over interstate and foreign commerce was not, and could not be, foreseen. If there had been no provision in the Federal Constitution specifically restraining the States from levying duties or imposts on imports and exports, such limitation would have been implied, and would necessarily have grown out of the exclusive power given to Congress to regulate such commerce. This is clearly shown by the reasoning in McCulloch v. Maryland and Brown v. Maryland. In like manner, the power to levy duties upon foreign commerce

would possibly be held included in the grant to Congress of exclusive jurisdiction over such commerce.

The important and comprehensive limitation upon the taxing power of the States therefore is that which is implied from and grows out of the control given by the Constitution to Congress over interstate and foreign commerce. As to the latter, we have the express prohibition against levying duties on imports or exports, and also the implied limitation growing out of the national control over foreign commerce. Commerce with foreign nations includes importing and exporting, and a State tax on imports or exports is necessarily an interference with foreign commerce. Thus, the great leading case of Brown v. Maryland, infra, is decided upon both of these grounds.

§ 101. Gibbons v. Ogden.

The relation of the commerce clause of the Constitution to the taxing power of the State cannot be understood without a clear apprehension of the judicial construction of that clause, and this begins with the great opinion of Chief Justice Marshall in Gibbons v. Ogden.1 In this opinion, as in that of McCulloch v. Maryland, he cites no authorities, for there were none to cite. The grant by the State of New York of the exclusive right to navigate the waters of that State with boats propelled by fire or steam was held void, on the ground that it was against the coasting license granted by Congress, and was an interference with commerce between the States.

The opinion gave a broad and comprehensive construction of the term "commerce," which has been the basis of all subsequent adjudications. The Constitution is one of enumeration, and not of definition. The power to regulate is the power to prescribe the rules by which commerce is to

1 9 Wheaton, 1.

be governed, and this power, like all others vested in Congress, is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations other than are prescribed inthe Constitution. As to the extent of the power of Congress, it was said, 1. c. page 195:

66

But, in regulating commerce with foreign nations, the power of Congress does not stop at the jurisdictional lines of the several States. It would be a very useless power if it could not pass those lines. The commerce of the United States with foreign nations is that of the whole United States. Every district has a right to participate in it. The deep streams which penetrate our country in every direction, pass through the interior of almost every State in the Union, and furnish the means of exercising this right. If Congress has the power to regulate it, that power must be exercised whenever the subject exists. If it exists within the States, if a foreign voyage may commence or terminate at a port within a State, then the power of Congress may be exercised within a State."

The argument was advanced that there was a concurrent power of regulating commerce in the States, as there was a concurrent power over internal taxation vested in the States and the Federal government, and on this point it was said, pp. 198, 199:

"The grant of the power to lay and collect taxes is, like the power to regulate commerce, made in general terms, and has never been understood to interfere with the exercise of the same power by the States; and hence has been drawn an argument which has been applied to the question under consideration. But the two grants are not, it is conceived, similar in their terms or their nature. Although many of the powers formerly exercised by the States, are transferred to the government of the Union, yet the State governments remain, and constitute a most important part of our system. The power of taxation is

indispensable to their existence, and is a power which, in its own nature, is capable of residing in, and being exercised by, different authorities at the same time. We are accustomed to see it placed, for different purposes, in different hands. Taxation is the simple operation of taking small portions from a perpetually accumulating mass, susceptible of almost infinite division; and a power in one to take what is necessary for certain purposes, is not, in its nature, incompatible with a power in another to take what is necessary for other purposes. Congress is authorized to lay and collect taxes, etc., to pay the debts, and provide for the common defense and general welfare of the United States. This does not interfere with the power of the States to tax for the support of their own governments; nor is the exercise of that power by the States an exercise of any portion of the power that is granted to the United States. In imposing taxes for State purposes, they are not doing what Congress is empowered to do. Congress is not empowered to tax for those purposes which are within the exclusive province of the States. When, then, each government exercises the power of taxation, neither is exercising the power of the other. But, when a State proceeds to regulate commerce with foreign nations, or among the several States, it is exercising the very power that is granted to Congress, and is doing the very thing which Congress is authorized to do. There is no analogy, then, between the power of taxation and the power of regulating

commerce.'

The court said therefore that in any case of conflict, the act of Congress is supreme, and the law of the State, though enacted in the exercise of powers not controverted, must yield to it.

It was conceded that commerce between the several States is restricted to that which concerns more States than one, and that completely internal commerce of the State

may be considered as reserved to the regulation of the State itself.

§ 102. Brown v. Maryland.

The first application of these clauses of the Constitution to the taxing power of the State was in 1837 in the case of Brown v. Maryland, wherein another great opinion of Chief Justice Marshall declared the line of limitation between the exercise of State and Federal authority. In McCulloch v. Maryland, the exemption from State taxation of the means employed.by the general government had been declared; and in this case the same principle of Federal supremacy was extended to justify the limitation of a State's taxing authority by the national control over

commerce.

The State of Maryland passed an act requiring every importer of foreign merchandise to take out a license, paying therefor fifty dollars. Conviction under the act was sustained by the Court of Appeals of Maryland, but it was declared unconstitutional by the Supreme Court, and the requirement of a license for conducting the business of an importer was held to come within the prohibition of a tax on imports, and to be also an attempted regulation of commerce. As to the limitation of the State's taxing power by the paramount control of Congress over commerce, see supra, §9. Commenting upon the circumstances attending the adoption of the Constitution, the court said, 1. c. page 438: :

"From the vast inequality between the different States of the confederacy, as to commercial advantages, few subjects were viewed with deeper interest, or excited more irritation, than the manner in which the several States exer

1 12 Wheat. 419. The case was argued for Maryland by Mr. Taney, afterwards the successor of Chief Justice Marshall, and by Reverdy John

son.