nion was hastily and inconsiderately declared. If the construction given to the constitution in this case was the true one, the provision would be, in a great degree, useless, and the policy of it defeated. The very purpose of the power was exclusive. It was to deprive the states individually of the power of naturalizing aliens according to their own will and pleasure, and thereby giving them the rights and privileges of citizens in every other state.

If each state can naturalize upon one year's residence, when the act of Congress requires five, of what use is the act of Congress, and how does it become a uniform rule ?

This decision of the Circuit Court may be considered, as in effect, overruled. In the same Circuit Court, in 1797, Judge Iredell intimated, that if the question had not previously occurred, he should be disposed to think, that the power of naturalization operated exclusively, as soon as it was exercised by Congress. And in the Circuit Court of Pennsylvania, in 1814, it was the opinion of Judge Washington, that the power to naturalize was exclusively vested in Congress. Afterwards, in Chirac v. Chirac, the chief justice of the United States observed, that it certainly ought not to be controverted, that the power of naturalization was vested exclusively in Congress. In Houston v. Moore, Judge Story mentioned the power in Congress to establish a uniform rule of naturalization, as one which was exclusive, on the ground of there being a direct repugnancy or incompatibility in the exercise of it by the states. The weight of authority, as well as of reason, may, therefore, be considered as clearly in favour of this latter construction.

a United States v. Villato, 2 Dallas, 370.

Golden v. Prince, 3 Wash. Cir. R. 313. c 2 Wheaton, 269. d 5 Wheaton, 19.


No state CLA tax a nation

tax upon

(6.) The states cannot impose a tax on the national bank, or its branches, or on national stock.

The inability of the states to impede or control, by taxation or otherwise, the lawful institutions and measures of al banke

, or the national government, was largely discussed, and strongly declared, in the case of M. Culloch v. The State of Maryland. In that case, the state of Maryland had imposed a

the Branch Bank of the United States established in that state, and, assuming the bank to be constitutionally created, and lawfully established in that state, the question arose on the validity of the state tax. It was adjudged that the state governments had no right to tax any of the constitutional means employed by the government of the Union to execute its constitutional powers, nor to retard, impede, burden, or in any manner control the operations of the constitutional laws enacted by Congress, to carry into effect the powers vested in the national government.

To define and settle the bounds of the restriction of the power of taxation in the states, and especially when that restriction was deduced from the implied powers of the general government, was a great and difficult undertaking; but it appears to have been, in this instance, most wisely and most successfully performed. It was declared by the court, that it was not to be denied, that the power of taxation was to be concurrently exercised by the two governments; but such was the paramount character of the constitution of the United States, that it had a capacity to withdraw any subject from the action even of this power, and it might restrain a state from any exercise of it which may be incompatible with, and repugnant to, the constitutional laws of the Union. The great principle that governed the case was, that the constitution, and the laws made in pursuance thereof, were supreme, and that they controlled the constitution and laws of the respective states, and could not be con

[blocks in formation]

trolled by them. It was of the very essence of supremacy, to remove all obstacles to its action within its own spbere, and so to modify every power vested in subordinate governments as to exempt its own operations from their influence. A supreme power must control every other power which is repugnant to it. The right of taxation in the states extends to all subjects over which its sovereign power extends, and no further. The sovereignty of a state extends to every thing which exists by its own authority, or is introduced by its permission ; but it does not extend to those means which are employed by Congress to carry into execution their constitutional powers. The power of state taxation is to be measured by the extent of the state sovereignty, and this leaves to a state the command of all its resources, and the unimpaired power of taxing the people and property of the state. But it places beyond the reach of state power all those powers conferred on the government of the Union, and all those means which are given for the purpose of carrying those powers into execution. This principle relieves from clashing sovereignty; from interfering powers; from a repugnancy between a right in one government to pull down what there is an acknowledged right in another to build up; from the incompatibility of a right in one government to destroy what there is a right in another to preserve. The power to tax would involve the power to destroy, and the power to destroy might defeat and render useless the power

There would be a plain repugnance in conferring on one government a power to control the constitutional measures of another, which other, with respect to those very measures, was declared to be supreme over that which exerts the control. If the right of the states to tax the means employed by the general government did really exist, then the declaration that the constitution and the laws made in pursuance thereof should be the supreme law of the land, would be empty and unmeaning declamation. If the states might tax one instrument employed by the government in the execution of its powers, they might tar

to create.

[ocr errors][ocr errors]

every other instrument. They might tax the mail ; they might tax the mint; they might tax the papers of the custom house; they might tax judicial process; they might tax all the means employed by the government, to an excess which would defeat all the ends of government.

The claim of the states to tax the Bank of the United States was thus denied, and shown to be fallacious; and that there was a manisest repugnancy between the power of Maryland to tax, and the power of Congress to preserve the institution of the branch bank. A tax on the operations of the bank, was a tax on the operations of an instrument employed by the government of the Union to carry its powers into execution, and was consequently unconstitutional. case could not be selected from the decisions of the Supreme Court of the United States, superior to this one of M'Culloch and the State of Maryland, for the clear and satisfactory manner in which the supremacy of the laws of the Union have been maintained by the court, and an undue assertion of state power overruled and defeated.

But the court were careful to declare that their decision was to be received with this qualification ; that the states were not deprived of any resources of taxation which they originally possessed; and that the restriction did not extend to a tax paid by the real property of the bank, in common with the real property within the state; nor to a tax imposed upon

the interest which the citizens of Maryland might hold in that institution, in common with other property of the same description throughout the state.

The decision pronounced in this case against the validity of the Maryland tax, was made on the 7th of March, 1819, and it was on the 7th of February preceding, that the legislature of the state of Ohio imposed a similar tax, to the amount of 50,000 dollars annually, on the Branch Bank of the United States established in that state. Notwithstanding this decision, the officers of the state of Ohio proceeded to levy the tax, and that act brought up before the Supreme Court a renewed discussion and consideration of the legality of such a tax. It was attempted to withdraw this case from the influence and authority of the former decision, by the suggestion that the Bank of the United States was a mere private corporation, engaged in its own business, with its own views, and that its great end and principal object were private trade and private profit. It was admitted, that if that were the case, the bank would be subject to the taxing power of the state, as any individual would be. But it was not the case. The bank was not created for its own sake, or for private purposes. It has never been supposed that Congress could create such a corporation. It was not a private, but a public corporation, created for public and national purposes, and as an instrument necessary and proper for carrying into effect the powers vested in the government of the United States. The business of lending and dealing in money for private purposes, was an incidental circumstance, and not the primary object; and the bank was endowed with this faculty, in order to enable it to effect the great public ends of the institution, and without which faculty and business the bank would want a capacity to perform its public functions. And if the trade of the bank was essential to its character as a machine for the fiscal operations of the government, that trade must be exempt from state control, and a tax upon that trade bears upon

the whole machine, and was, consequently, inadmissible, and repugnant to the constitution. In Weston v. The City Council of Charleston," it was decided, that a state tax on stock issued for loans made to the United States, was unconstitutional. The court considered it to be a tax on the power given to Congress to borrow money on the credit of the United States, and consequently repugnant to the constitution. By declaring the powers of the general government supreme, the constitution has shielded its action in the

a Osborn v. Bank of the United States, 9 Wheaton, 738, b 2 Pelers' U. S. Rep. 449,

« ForrigeFortsett »