tion of the revenue power, the other did not. One was to give authority to Congress to pay the revolutionary debt, both of the United States and of the States, and to fulfil all the engagements of the Confederation; the other was to declare that revenues were to be raised and taxes levied for the purpose of paying the debts and necessary expenses of the United States, limiting all revenue laws, excepting those which were to appropriate specific funds to the payment of interest on debts or loans, to a term of years. When these propositions came to be acted upon, that reported by the grand committee was modified into the declaration that "all debts contracted and engagements entered into, by or under the authority of Congress, shall be as valid against the United States, under this Constitution, as under the Confederation." The State debts were thus left out; the declaration was prefixed, as an amendment, to the clause which granted the revenue power, and was thus obviously no qualification of that power.1

But it was thought by Mr. Sherman, that the clause for laying taxes and duties ought to have connected with it an express provision for the payment of the old debts; and he accordingly moved to add to that clause the words, "for the payment of said debts, and for the defraying the expenses that shall be incurred for the common defence and general welfare." This was regarded by the Convention as

1 See the proceedings which took place, August 22, 24, and 25.

Elliot, V. 462, 463, 464, 471, 475– 477.

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unnecessary, and was therefore not adopted.1 But the provision reported by the committee of detail, which was intended as a qualification of the revenue power, by declaring the objects for which taxes and duties were to be levied, had not yet been acted upon, and on the 31st of August, this, with all other matters not disposed of, was referred to a new grand committee, who, on the 4th of September, introduced an amendment to the revenue clause, which made it read as follows:-"The legislature shall have power to lay and collect taxes, duties, imposts, and excises, to pay the debts, and provide for the common defence and general welfare of the United States." This amendment was unanimously adopted; and when the Constitution was revised, at the close of the proceedings, the declaration which made the debts and engagements of the Confederation obligatory upon the new Congress, was separated from the context of the revenue clause, and placed by itself in the sixth article.

There is one other restraint upon the revenue, as well as upon the commercial power, the history of which now demands our inquiries. But in order to understand it correctly, it will be necessary for the reader to recur to the position in which the revenue and commercial powers were left by the sectional compromises described in the last chapter.

1 Elliot, V. 476, 477. Mr. Madison says, "This proposition, as being unnecessary, was disagreed to"; that is, unnecessary as a secu

The

rity of the old debts of the United States.

2 Ibid. 506, 507.

struggle between the Northern and the Southern States concerning the limitations of those powers turned, as we have seen, on certain restrictions de sired by the latter. They wished to have exports excepted out of the revenue power; they wished to have a vote of two thirds made necessary to the passage of any commercial regulation; and three of them wished to have the slave-trade excepted from both the revenue and the commercial powers. We have seen that the result of the sectional compromises was to leave the commercial and revenue powers unlimited, excepting by the saving in relation to the slave-trade; that they left the revenue power unlimited, excepting by the restriction concerning exports and a capitation tax; and that the commercial power was to be exercised, like other legislative powers, by a majority in Congress. General commercial and revenue powers, then, without other restrictions than these, would enable Congress to collect their revenues where they should see fit, without obliging them to adopt the old ports of entry of the States, or to consider the place where a cargo was to be unladen. They might have custom-houses in only one place in each State, or in only such States as they might choose to select, and might thus compel vessels bound from or to all the other States to clear or enter at those places. But, on the other hand, a constitutional provision which would require them to establish custom-houses at the old ports of entry of the States, without leaving them at liberty to establish

other ports of entry, or to compel vessels to receive on board revenue officers before they had reached their ports of destination, would create opportunities and facilities for smuggling.

It appears that the people of Maryland felt some apprehension that an unrestricted power to make commercial and fiscal regulations might result in compelling vessels bound to or from Baltimore to enter or clear at Norfolk, or some other port in Virginia. The delegates of Maryland accordingly introduced a proposition, which embraced two ideas; first, that Congress shall not oblige vessels, domestic or foreign, to enter or pay duties or imposts in any other State than in that to which they may be bound, or to clear from any other State than that in which their cargoes may be laden; secondly, that Congress shall not induce vessels to enter or clear in one State in preference to another, by any privileges or immunities.1 This proposition became the basis of that clause of the Constitution, which declares that "no preference shall be given by any regulation of commerce or revenue to the ports of one State over those of another; nor shall vessels bound to, or from, one State, be obliged to enter, clear, or pay duties in another." 2

It was while this subject of the equal operation of the commercial and revenue powers upon the different States was under consideration, that the

1 Elliot, V. 478, 479.

2 Constitution, Art. I. § 9. See the proceedings which took place

on the proposition of the Maryland delegates. Elliot, V. 478, 479, 483, 502, 545.

further provision was devised and incorporated into the Constitution, which requires all duties, imposts, and excises to be uniform throughout the United States. This clause, in the final revision of the instrument, was annexed to the power of taxation.1

The commercial power, besides being subjected to the restrictions which have been thus described, was extended to a subject not embraced in it by the report of the committee of detail. They had included in it "commerce with foreign nations, and among the several States"; meaning, by the former term, not to include the Indian tribes upon this continent, but all other communities, civilized and barbarian, foreign to the people of the United States. By the system which had always prevailed in the relations of Europeans and their descendants with the Indians of America, those tribes had constantly been regarded as distinct and independent political communities, retaining their original rights, and among them the undisputed possession of the soil; subject to the exclusive right of the European nation making the first discovery of their territory to purchase it. This principle, incorporated into the public law of Europe at the time of the discovery and settlement of the New World, and practised by general consent of the nations of Europe, was the basis of all the relations maintained with the Indian tribes by the imperial government, in the time of our colonial state, by our Revolutionary

1 Elliot, V. 543. Constitution, Art. I. § 8, clause 1.