Constitutional Whig. [volume] (Richmond, Va.) 1824-1832, 1824-03-12

TENN amendment That an afflfnatYe grant oil
power is not exclusive, unless in IFS own nature
it be such that the continued exercise of ii by
the former possesser is inconsistent with the
grant, and that this is not of that description.
| The plaintiff, conCeding these post,Ilates, eX-
cept the last, contends, that full power to regu-
late particular object, implies the whole pow
err and leaves no residuum that grant of the
whole is incompatible with the existence of a
right in another to any part of it.
! Both parties have appealed tothe constitution,
| to legislative acts, and judicial decisions; and
have drawn arguments from all these sources to
support and illustrate the propositions they res
pectiveiy maintain.
| The grant of the power to lay and collect tax
es is like the power to regulate commerce,
made in general terms, and has never been I'M
derstood to interfere with the exercise Of the
same power by the states; and hence has been
drawn an argument which has been applied 70 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
most important part of our system. The power
of taxation is indispensable to there existence,
and is power which in its nature, is capable of
residing in and being exercised by, different au-
| thorities at the same time. We are accustomed
to it placed, for different purposes, in differ
ent hands. Taxation is the simple operation of
taking small portions from a perpetually accu-
mulatIng mas, susceptible of almost Infinite divi
sion, and a power in one TO take what is necessa-
sary for certain purposes is not in its nature,
incompatible with power in another to take
what is necessary forother purposes. Congress
is authorized 10 lay aulcollect taxes, &c. to pay
| the debts and proyiG for the common defence a.
general welar ofthe 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 ex-
ercise of any portion ofthe power that is granted
to the United States. In imposing taxes for
state purposes, they are not doing what Con
gress is empowered to do. Congress is not en-
powered TO tax forthose purposes which are with
in the exclusive province of the state. When,
then, each government exercises the power of
taxation, neither is exercising the power of the
other. But, when 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 We
ry thing which Congress is authorised to do
| There Is no analogy, then, between the power of
taxation and the power Ofregulating commerce.
In liscussing the question whether this power
is still in the states, in the under consdera-
.on, we may dismiss from it the inquiry whe-
Their it is surrendered by the mere grant to
Congress, or is retained until Congress shall ex-
ercise the power. We may dismiss that inqui-
ry, because it has been exercised, and the re-
guations which Congress deemed it proper to
make are now IN full operation. The sole ques-
lion is, can state regulate commerce with for
cign nations and among the states, while Con-
gres, is regulating it ?
IL Fhe counsel for the appellee answer this ques-
ton in the affirmative, and rely very much on
no ictin in
their opinion. They say, very truly, that limi-
tations of power furnish strong argument in
| avor of the existence OF that power, and that
the section which prohibits the states from lay
ing duties on imports or exports proves that this
power might have been exercised had it not
been expressly forbidden; and, consequently,
that any other commercial regulation not ex-
pressly forbidden, to which the original power of
the state was competent, may still be made.
That this restriction shows the opinion of the
| Convention, that a state might impose duties on
exports and imports, if not expressly forbidden,
will be conceded /; but that it follows as con-
| sequence, from this concession, that stale may
| regulate commerce with foreign nations and a
mong the states, cannot be admitted.
! We must first determine, whether the act Of
laying {" duties or npo5ts on imports or exports, -
! is considered in the constituon as branch! of the
| taxing power, or the power TO regulate com
mercc. We think it very clear, that it is con
sidcred rs Il branch Of the taxing power. Ii is
treated in the first clause of the 9Th section:
Sc Congress shall have power to lay and collect
| taxes, duties imports, and excises ID and before
| commerce is mentioned, the rule by which the
exercise ofthis power must be governed, is de-
clared. 1t is, that all duties, imports, and excl
sas, shall be uniform In separate clause OF
| the enumeration, the power TO regulate com
| rnerCe IS given, as being entirely distinct from
the right to levy taxes and imports, and as being
| a new power, not before conferred. The con-
stitution, then, considers these powers as sub
| stantive, and distinct from each other and so
| places them In the enumeration it contains.
| The power of imposing duties on imports, is
classed with the power to levy taxes, and that
seems to- be its natural place. But the power to
levy taxes could neverb be considered as abridg-
| ing the right ofthc states on that subject and
! they might, consequently, have exercised it by
! eyying duties on Imports or exports, had the
| Constitution contained no prohibition on this
subject. This prohibition, then, is an except
or from the acknowledged power of the states to
levy taxes, not from the questionable power TO
regulate commerce.
CA duty oftonnaga," is as much a tax, as du-
| iy on imports or exports; and the reason which
induced the prohibition of those taxes, extends
10 this also. This tax may be imposed by state,
With the consent of Congress; and it may be ad-
Initted, that Congress cannot give right TO
state, in virtue of its own powers. But duty
| oftonnage being part of the power Of imposing
taxes, its prohibition may certainly be made to
| depend on Congress, without afording any i'm
pication respecting power to regulate com
merce. 1t is true, that duties may often be,
and IN fact often are, imposed on tonnage, with
a view to the regulation of commerce; but they