The southern press. [volume] (Washington [D.C.]) 1850-1852, 1852-03-20

n ~ E1tssvv sfas ss.Iass~ ytsss
IT, Suggestions ofths Gmsesnor of Alabama
In bienHSal message to ti,s ganesal assembly
Of 49, 6tGts n ~ late session. and the discv6-
sionH&n ~ HOUSE. of representatives upon the
queeDn n imposing . discriminating tar BY
ones Nate - a eountcrvailing measure, on w
pro6ncts and manufactures Of anothde. when
brought into the former for sale. have induced
me 10 examine the subject. The result of the
examination is a thorough conviction Of the
right Of n State to impose such tax and en-
tirey concur with the governor and his friends in
the house, that its imposition would be de-
fsnaible against any State that refuses to per-
form its constitutional duties to the prejudice OF
another.
do not understand that the tax was recon-
mended as measure for immediate adoption.
hive hastily thrown together the following
views, and as the subject is not well understood,
beg yon will give this paper a place in the
Southern Press" The flag Of State Rights is
now at half-mast, the doctrines of federalism
are triumphant, and it 10 time to vindicate the
teachings of Jefferson and Madison. address
myself to the subject.
The first clause of the eighth section Of the
first article Of the Constitution Of the United
States, grants the power to Congress Z" to lay
uuu COIIoCt thAosy UuLlor, flupOAt9 AtlO eNCtAeB,
and provides that "al duties, imposts and ex
cises, shall be uniform throughout the United
States" and the co-relative provision is found
in the second clause of the tenth section of the
same article, which provides, that no State
shall, without the consent of Congress, lay any
imposts on duties, on imports or exports, except
what may be absolutely necessary for executing
its inspection laws"
The third clause Of the section first referred
to, gives the power to Congress :" to regulate
commerce with foreign nations and among the
several States, and with Indian tribes"
1t may be assumed us postulate, that, pre-
vous to the adoption Of the federal Constitution
the power OF the States to tax property within
their limits, was unrestricted; and we think it
equally clear that the affirmative grants recited,
do not, in themselves, divest this power; and the
negative, upon the authority of the States, up
plies only to "imports and exports" This
question has so often been considered and ad-
Indicated, that we prefer to cite the opinions of
others, rather than rely upon our own unassisted
argument.
The Supreme Court of the United States
have decided that the powers granted to Con-
gress, are not exclusive of similar powers exist
ing in the States, except where the Constitu
ton has expressly, in terms, given an exclusive
power to Congress; or the exercise of like
power is prohibited in the States; or there is
direct repugnancy or incompatibility in the
exercise of it by the States. (A)
The same learned tribunal has held, that the
laying of" duties or imposts on imports" was
derived from the power to tax and stress is
laid on the fact that the power is given in the
same sentence as the power to lay and collect
taxes" The power, they say, to regulate CON-
rnarca ia uivau m n aapnrato rlauoo ha;nU ~,
tirely distinct from the right to levy taxes and
mposts, and as being new power not before
conferred. Had not the States been prohibited,
they might under their power to tax, have levied
duties on imports and exports. This prohibi-
ton, then, is an exception from the acknowledged
po'cer Of the States TO levy tares, not from The
questionable po,oer TO regulate commerce." (B)
In the thirty second number Of the Federalia
it is said that notwithstanding the affirmative
grants Of general authorities, there has been the
most pointed care in those cases, where it was
deemed improper that the like authorities should
reside in the States, to insert negative clauses
prohibiting the exercise of them by the States"
Hence it was concluded by Chief Justice fancy,
in the Boston and New York Passenger cases
co. That the grant of general authority to
regulate commerce, is not therefore prohibi
ton to the States to make regulations concern
ing it within their own territorial limits, not in
conflict with the regulations Of commerce.
"The authority of Congress to lay taxes upon
it, is derived from the express grant of power
in the 9Th section of the LIST article, to Law and
collect taxes, duties, imports and excuses; and
the inability of the States to tax it arises from
the express prohibition contained in the 10th
section of the same article.
This was the construction of the Constitu-
ton under which the people of the States adop.
ted it, and which has been affirmed in the clear.
est terms by the decisions of this court"
These principles were previously affirmed by
sovereignty of a State, in the exercise of its leo
islation, is not to be impaired unless it be clear
that it has transcribed its Legitimate authority
nor ought any power to be sought, much less to
be adjudged, in favor Of tie United States, unless
it be clearly within the reach of its constitution
al charter,-the Constitution containing grant
of powers in many instances similar to those al.
ready existing in the State governments, and
some of these being OF vital Importance to State
authority and State legislation, it is not to be
admitted that mere grant of such powers in
Affirmative terms to Congress, does per Sc trans
fer an exclusive sovereignty on such subjects to
the latter. On the contrary, a reasonable inter
probation of that instrument, necessarily leads to
the conclusion that the powers 80 granted are
neuer erclusiue Of similar pooers eristing in the
States unless ,0here The Constitution has cypress
ly, in terms giren exclusive po,oer to- Congress-
or The exercise of like poacer is prohibited 10 The
States, or there is direct repugnd,scy or incona.
patidility in the exercise Of il by the STATES. In
all other cases. not falling within the classes al.
ready mentioned, it seems unquestionable that
the States retain concurrent authority not only
upon The letter and spirn Of The eleventh amend
ment Of the Constitution, but upon The soundea
principles Of general reasoning"
The opinions of the Chief Justice, and Justices
Daniel and Woodbury., ip the Passenger cases,
very fully sustain the principles above stated ;
and the latter seems to have collected not only
the decisions of the federal courts pertinent to
the subject, but the opinions of other distin
guished expounders Of the Constitution.
The author of the 32d number of the Federal
ist says; " ] affirm with the exception of duties
on imports and exports) they (the States) would.