Richmond enquirer. [volume] (Richmond, Va.) 1815-1867, 1824-03-12
Ive.rAins Oh winch the people mu.l often RELY -. ~


lar as that navigation may be, in any manner con-
"ec'eu with " commerce with foreisa nations, or
among 'he several states, with the Indian irttes
"".y' %, consequence, pass the Jurisdictioual hue
o' new iork, and act upon the very waters TO which
tue proh,b''ion now under consideration applies
p", " mas oeen urged with great earResiness that
""no 'he power of Cobgi ess TO regulate conmerce
win ioresn nations aud among the several staes i'm
co-eSiens've with the suljecI itself, and have no
o'hei Hms than are prescribed n the constitution,
Se ne states may severaliy exercise the same power
wi'hn their respective Jurisdictions Ia support OF
.h's argument, Ia SAID, that they possessrd il rs an
'nseraf.o'e attribute of sovereignty before the lorma
non OF the constitution, and still reian it, except so
lar az they have surrendered by tbat instrument
That this principle results from the nature of The 90.
vernn'ent, and rs secured by the tenth anne udment
mat an affirmative grant OF power il not exclusive
unless Ia ,ls IL be such that the continued
exercise of 10y the former possessor liz inconsisten,
with the grant, and that this not Of that descrip-
ton. 'r
The plaintiff, conceding these pos,ujaies, excep,
lhe Last, contends, that full power 10 regulate par
'cuar subject, in'pi'es The whole power, and leaves
40 resiS"m that OF the whole Is incouapaii,
NE w,h the ex,steuce OF a right in another 10 any
part al!
Both parties have appealed TO the constitutions TO
legislative acts, aud judicial decisions and have
drawn arguments iron, all these sources TO support
aud illustrate the propositions they aan-
tain.
The grant the power tn lay and collect ,ax,.i,.
he 'he power 10 regulate rec, made in gener-
Al iernis aud has never been understood 10 interfere
WIN me exercise al the same power iy the stat es
'hh htnce mas beeb drawn which has
nee" applied 10 the question under considerations
D", ihe Nv" grants are not is conceived similar in
ih-ir ternis or their nature. Although many of tho
powers formerly cised by The STATES .te ransi,
red To- The government at the Union, YET the state GO
and constitute % aust important part
VI our system lhe power oil taxaiiun ~ iplispensa-
Die TO Their existence, and powcr which, in its
own nature, Is capable of residing in, and being en-
e,c'sed by, difereut authorities ~ same lime
we are accustomed To see 1t placed, for different
purposes, III different hands. Taxation is The sin,pe
accommodating mass, sIscepiihir of almost infinite d.
vision, ami apower IN one To take what's necessar, LOT
certain purposes rs not IN its nature, 'noonpaIh" with
power IA another tn take what is necessary for
other purposes Congress is authorized To lay and
collect taxes, &c. pay The debts and provide for
W., W, com" - defence and general welfare of The
Chheu otdtes his does not interfere with the
power OF The states Tor The snppni OF their own
governments nor ~ the exerc,sr of thar power by
,"e S,"'es an exerc,sr OF any poriion Of the power
""t IS granted To the Cniied States, In imposing
Ihxes for siaie purposes, they aIe NOT doing what
Congress IS empo"eted Ia do. Congress " not en-
powered 10 Tax IOr those purposes wiirh nte within
tue exclusive province ot the strits. When, ihen.
each government exercises the power of iaxa,ou
"e"her IL exercising the power of The other. But
when "a state proceeds 10 regulate commerce viii
'o'c'gh NATIONS, or among the several sates IL is ex
ercIsIng The very power that granted TO Congress
anu rs doing the very thing which Congress is au-
'no''Hen To uo. There Is no analogy, then, between
the power of taxation and the power of regulating
commerce., IS
J." discussing the ques,ioa whether this power ia
s"' 'n "r STATES III the case under consideration,
MA! dismiss irom the inquiry whether il is surren-
uetu ny ihe mere grant Cong ess or retained
uuti Congress shall exercise Tie power, we mae
"Siss 'h"' inquiry, because II has been cised
"nd me regulations which Congress dee med II pro-
per TO make HIe now in tul operation The sole
question IS, eau a state regulate commerce with for
t'eh na""ns and among The states, while Congress is
regulating IL
The counsel Tor The appellee answer this oues,;on
10 'he affirmative, aud rely very much the re.rrc-
r W ''f io'n section as supporting their opinion
v lrl L.,
h'sh strong argument in favor Of The \ sIenrc of
THAI power, and Thar the section which prohibits The
states from laying duties imports exports proves
hai ms power might have been xercsed had IL not
been expressly forbidden and, commemorative ihnt
any other commercial reguiatIon expressly for
"uen, to which The original power Of Ile state was
con,peieni, may still bc male.
That this restriction shows the opinion of The Com
'en'i0n, That state might impose duIies on exports
ana imports, II not expressly iorbi,ld u, will be con
ceded hut that II follows y a consequence, from
tbs concessions that state may regulate commerce
with foreign nations and among The states, cannot be
admitted.
We must first determine, whether the act OF LAYING
duties or imposts on imports exports" is oonsi-
dered IN the constitution = u branch nf the tnxing
power, or OF the power TO regulate commerce. We
think u very clear, that IL considered ds branch
OF the taxing power u IL so treated in the first clause
OF the 9th section Z" Congress shall have power 10
lay and collect taxes, duties imposis and excuses -
aud before commerce rs mentioned, the rule by which
i,e exercise OF this power must he governed, is de-
cared. II Is, Thai all duties. iniposls, and excises
shall he uniform. In a separate clause of The enr-
meraon, the power TO regulate commerce is given,
being eniIry distinct from the right TO lew taxes
aud imposIs, and as being new power, not before
conferred. The CONSTITUTIONS then, considers these
powers as substantive, and distinct from each other
and SO places them ~ the enumeration ~ c.,.airs
The power OF imposing duc. on ir1pbttt il cIa,,ed
with The power 70 levy taxes aud that seems 10 l,e
us natural place. But The power levy taxes could
never lie cOn.rdered as sbIidgiBg the tight of the
tIa-- that subject aud they might co,,senupntly
have exercised u Ivy !cryBg du'ie- nr Imports ~
ports, had the Constitution contained no prohibition
this subject. This prohibitions then is AN exceu.
i..1 from the acknowledged power Of the states 10
levy 'axes not on lie que slionable power TO reGa-
late commerce..
" A duty of tonnage" is ~ much TAX, as duv
on imports or exports and the which induc-
ed the prohibition oI those taxes extends this also
This tax may he Imposed by - state, with the con-
seal OF Congress aud II may be aduiued, that Con-
gTe1s cdnnut give right To state 10 VITiue of its
own powers. But duiy Of tonnage being II part of
the power oI imposing taxes its prOhitIun NAV GER
iainly be made 10 depend on Congress, without az
tording any implication respecting u power to Tfeu-
late commerce. d. ~ ttue, tat duties may often be-
and ~ fact often are, imposed OF tonnage. with n
view TO the regulation Of commerce but they may
I've also Imposed with view 10 revenue aud IL was
therefore, prudent lrecauiOn ~ utoliiit the STATES
from exercising this power. The idea that the same
measure NIGH, according 10 circumstances, be M
ranged with hefent classes Of power, was no nov
city TO the (Taoiers OF our Constitution TLose H.
iustiOus Statesmen aud patriots hid hccn, many OF
ihcE', deeply engaged ~ the discussions which pre-
teueu I'VE Wd' OF ohr revolution, hno Hil 81 iIem
were Ws'i read ~ those discussions. The right 70
regulate co0imrrce, even by lie npOsitUu Of duties
V's nca cOnr0ter'ed bot the right 10 impose suy
Tor III purpose OF revenue, produced war ~ 'u'-
pOttapt, perhaps ~ its consequences 20 the human
race, aHy the world has ever Witnessed.
These restrictions, then, on the raxiug power,
moi on that To regulate commerce aud ptesUpgose
the existence OF that which they RESTRAIN, Of thsi
which they do pu'poit 10 fesIr'iv.
But, the Inspections laws said 40 he Gcgniators
Of commetce, ard ave certainly iprog '.zed ~ lilo
Consultation bpiuu ,aseed "a .sc,,tto Of Al.