January Term, 1854.
Certiorari in Chatham. Application refused by Judge FLEMING, at Chambers, Dec. 21st, 1858.
The City Council of the City of Savannah, passed the following Ordinance: "And be it farther ordained, that on the gross amount of sales of all negroes, goods, wares and merchandise, or other commodity, article or thing, sold within the corporate limits of the City of Savannah, by any person or persons whomsoever, upon or for a commission, premium, percentage or other profit, charged or to be charged thereon, or on joint account, and when not included in the returns as stock in trade, and whether for cash or credit, between 24th January, 1842, and the last of April, 1842, and annually thereafter, between 1st May in each and every year, and the last day of April in each succeeding year, inclusive, there shall be paid by the person so selling, whether commission merchant, trader or agent, of any nature or kind whatever, fifty cents on every hundred dollars of the amount of such sales respectively".
Padelford, Fay Co., commission merchants, refused to pay the tax upon goods and merchandise imported into this State, and sold by them in the original casks and packages, upon commission, upon the ground that the laying of this tax was a violation of the Constitution of the United States. Upon certiorari before Judge Fleming, this objection was overruled, and this decision is assigned as error.
LAW BARTOW, for plaintiff in error.
GRIFFIN, for defendant in error.
[1.] The Ordinance of the City Council of Savannah, "That on the grow amount of sales of all negroes, goods, wares and merchandise or other commodity, article or things sold within the corporate unites of the city of Savannah, by any person or persons whomsoever, upon or for a compensation, precation, pretator or other profit charged or to be charged thereof or on joint account, and when not included in the returns and stock in trade, and whether for cash or credit, between the twenty-fourth day of January, 1842, and the last of April, 1842, inclusive, and unimity therefore, between the best day of May in each and every year, and the last day of April in each succeeding year, exclusive, there
PEDDLERS — TAX ON. "One whose vocation is to go from place to place with a sample stove carried upon a wagon, exhibit the sample and procure orders, which his employer afterwards fills by delivering through other agents the stoves so ordered, is a peddler within the meaning of the Code of Georgia. But though a peddler, If he is a citizen and resident of Virginia, and the orders he solicits and procures are for stoves belonging to a Missouri corporation, which the latter holds in Missouri and keeps there until they are thus ordered, be is protected by the Constitution of the United States, as lately construed by the Supreme Court, shall be paid by the person so selling, whether commission merchant, broker or agent of any nature or kind whatsoever, fifty cents on every hundred dollars of the amount of such sales, respectively," c., is not unconstitutional according to the decision of the Supreme Court of the U.S., in Brown vs. Maryland. 12 Wheat.
[2.] That case is overruled by the License Cases, in 5 Howard's, R.
[3.] And by the Passenger Cases, in 7 Howard's R.
[4.] And partly by the case of Groves et al. vs. Slaughter, 15 Pet.
[5.] The Constitution is to be construed In the sense in which it was understood by the makers of it at the time when they made it.
[6.] This sense is expressed by the four following propositions:
1. That the constitution delegated to the General Government, or any department thereof, no power by [MISSING TEXT], but only delegated such powers as it expressly enumerated.
2. That it delegated no exclusive power, unless the delegation was said to be exclusive.
3. That it laid no prohibition upon the States, except such as it specified.
4. That the words used in it. If susceptible of more meanings than one, were used in the meaning which was least favorable to the delegation of power, and most favorable to its retention.
[7.] The Supreme Court of Georgia is [MISSING TEXT] and co-ordinate with the Supreme Court of the U. S.; and therefore, the latter cannot give the former an order, or make for it a precedent.
[8.] The four propositions are [MISSING TEXT], anything said or done by the Supreme [MISSING TEXT] of the lg. S. to the contrary, notwithstanding,
[9.] Tried by these, the decision In Brown vs. Maryland, Is unconstitutional.
[10.] Tried by these. the [MISSING TEXT] in question le not uncostitutional, as against the commercial clause.
[11.] Tried by these, it Is not against the clause which prohibits the State to tax Imparts.
[12.] The meaning of this [MISSING TEXT] is-
1. That without the consent of Congress, a State may tax imports for the purpose of executing her Inspection Laws.
2. That the net returnee of such a tax is for the U. S.
3. That with the consent of Congress a State may tax imports for any purpose.
4. That even without the consent of Congress a State may tax imports for any purpose, subject only to a power in Congress to `revise' and `control' the Tax Law.
5. That the part of the clause giving the `net produce' to the U. S. applies only to Tax Laws for inspection purposes.
[12.] Whether the Court is not bound to presume that this Ordinance was passed for [MISSING TEXT] no Inspection Law, may admit of a doubt.
[14.] Admitting It not to have been for Inspection purposes, yet It is to the Presumed that Congress has consented to it.
[15.] But If Congress has not consented to [MISSING TEXT], still it is not void, but only subject to be revised and controlled by Congress.
[16.] If void, It work. no wrong to these plaintiffs.
But a single question is presented for decision in this ease and that is, whether the Ordinance of the City Council of savannah violates the Constitution of the United States.
The plaintiff's in error insist that it violates two of the provisions of the Constitution — that which declares that Congress shall have power "To regulate commerce with foreign nations and among the several States"; and that which declares[MISSING TEXT] "No State shall, without the consent of the Congress, lay any imposts or duties on imports or exports, except what may be absolutely necessary for executing its Inspection Laws".
The question is one of the utmost importance. The State has passed many unconstitutional Tax Laws, if this be unconstitutional. The great Tax Act of 1804, declared that "Thirty-one and a quarter cents shall be levied on every hundred dollars' value of all persons' stock in trade".
Also, "That any non-resident who shall expose to sale any goods in this State, shall, on his arrival, or within seven days after entering the same, make return," c.
The Act of 1821 declares that there shall be paid to the State "A tax of thirty-one and a quarter cents on every hundred dollars' value of stock operated upon by the Steamboat Company of Georgia".
The Act of 1840 declares that the tax "On capital employed in the business of Brokerage, and capital employed by Insurance and Trust Companies, in this State, shall be thirty-one and a quarter cents on every hundred dollars so invested",
The Act of 1845 lays "On all agencies of Banks authorized by other State:, and kept within this State, a tax of eight cents on every hundred dollars, on the amount of exchange bought and sold".
The Act of 1850 imposes a tax on "Each and every agent of any foreign Bank or individual residing in another State, doing business in this State".
The same principle that will make the Ordinance of the City Council unconstitutional, will equally make these acts so. Indeed, if the Ordinance violates the provision in the Constitution, as to the regulation of commerce, it is not very easy to see what is left to a State to tax. It can lay no tax that will not more or less affect commerce; more or less prevent consumption, and without consumption there can be no comment.
The question, then, deserves the most serious consideration
The question, it is insisted by counsel for plaintiff, has settled in their favor by the decision of the Supreme Court of the U. S. in the case of Brown et al. vs. Maryland, 12 Wheat 419. That case, therefore, will be noticed.
The case grew out of an Act of Maryland, "That all [MISSING TEXT] of foreign articles or commodities of dry goods, wares merchandise, by bale or package, or of wine, rum, bran whiskey and other distilled spirituous liquors, c., and o persons selling the same by wholesale, bale or package, should, before they were authorized to sell, take out a [MISSING TEXT] for which they should pay fifty dollars.
The plaintiffs in the ease "Imported and sold one pa of foreign dry goods, without having license to do so."
The Supreme Court determined that this Act was a [MISSING TEXT] each of the two clauses of the Constitution which I have quoted.
In relation to its being a violation of the clause which prohibits the States from laying any tax on imports or export without the consent of Congress, the Court, through Marshal C. J., say, "It may be conceded, that the words of the prohibition ought not to be pressed to their utmost extent". while we admit that sound principles of construction ought restrain all Courts from carrying the words of the prohibition beyond the object the Constitution is intended to secure, there must be a point of time when the prohibition ceases, the power of the State to tax commences; we cannot admit this point of time is the instant that the articles enter the[MISSING TEXT] try." "It is [MISSING TEXT]for the present to say, generally, [MISSING TEXT]when the importer has so acted upon the thing imported.[MISSING TEXT] has become incorporated and mixed up with the mass of[MISSING TEXT]in the country, it has perhaps lost Its distinctive[MISSING TEXT]ter as an import." "This indictment is against the [MISSING TEXT]for selling a package of dry goods in the form in which it imported, without a license. This state of things is if he sells them or otherwise mixes them with the general property of the State, by breaking up his packages and travelling with them as an itinerant [MISSING TEXT]'
The amount of this is, that although the mere introduction of an import into a State does not make it cease to be an import, yet, if the importer so act upon it as to make It become incorporated and mixed up with the mass of property in the country, as by selling it or breaking up the package in which it is contained, it does not then cease to be an import; and that as soon as it ceases to be an import, it may be taxed by the State.
Is this case analogous to the one we are deciding? It is now It was a case in which the Law prohibited the importer from selling the import. This is a case in which the Law lets him sell the import, but lays a tax on what he gets for it, on the gross amount of money which he receives for it. Now this money, it is, which is taxed. And it is something which "Had been incorporated and mixed up with the mass of property in the country." Something as different from "A package of dry goods, in the form in which it was imported", as that package, when sold, would be different from itself, in the form in which it was imported, or as that package, when broken up, would be different from itself, before its being broken up.
According to the principles, then, of Brown vs. Maryland, the State can, rather than cannot, tax this something — this money — the proceeds of the sale of the imports.
Again, the gross amount of sales are not the exact equivalents to the seller of the things sold. This amount is made of the cost of the goods sold and of the seller's profits, on them. Where do these profits come from? They, at least, are not imports. A tax on the gross amount of sales, is a tax, in part, on these profits.
And all of the expenses to which the importer is put, after his Import gets into the country, to bring it to sale, also enter into the gross amount of sales. His agents, his store-houses, his insurers, all cost him money. This cost be puts in the price of the import when lie sells It. Now cannot the State lay a tax on these profits — these services of agents — these storages — these insurances? A tax on the gross amount of sales is a tax, in part, on these things. But a tax on the naked import, it not a tax on any of them. I say in part; but would not a Court be justified, in order to save its State from the imputation of having violated the Constitution, to presume that the whole tax was intended to be on this part — [MISSING TEXT] part of the "gross amount of sales," due to these several items, and that the whole gross amount of sales was adopted merely as a convenient measure of the tax. Be this as it may, there is certainly a marked difference between "imports" and the "gross amount of the sales" of imports.
But the Ordinance is not confined to the gross amount Of the sales of imports. Imports are not mentioned in it. It la a general Tax Law. It lays a tax on the gross amount sales of all negroes, goods, wares and merchandise, or other commodity, article or thing sold within the corporate limits Savannah, by any person, upon a commission, c., "Betty the first day of May in each and every year, and the last of April in each succeeding year", c.
The tax is upon the gross amount of the sales arising from whole year's business, and dealing in articles of whatever
This shows the intention to have been to put articles of port, to say the least, spun no worse footing than [MISSING TEXT] products. And it is said, in Brown vs. Maryland, the State must discriminate in favor of the foreigner, and [MISSING TEXT]tax him when she taxes her own citizens. But it is [MISSING TEXT]said, that case, "That in our complex system, the object of the [MISSING TEXT] conferred on the government of the Union, and the [MISSING TEXT]the often conflicting powers which remain in the [MISSING TEXT]must always be taken into view, and may aid in expounding [MISSING TEXT]words of any particular clause". Now, what was the object [MISSING TEXT]this prohibition ? In a word. was the object to put [MISSING TEXT] in a better condition thin [MISSING TEXT] We know the object [MISSING TEXT]not to pat citizens of other States in that better condition, as to this, the Constitution. [MISSING TEXT]each State shall be entitled to all privileges and [MISSING TEXT]nines of citizens in the several States". They shall be to citizens not better off than citizens. If, then, the object was not to put foreigners in a better condition than natives, the object was not to prohibit such an Ordinance as this, for it merely puts them upon the same footing as that of citizens. But, indeed, the great object of this clause, as the history of a shows, and to which I may hereafter refer, was to prevent the seaboard States from taxing the imports of the interior States, as those imports passed through the former States to the latter. To do this effectually, discriminating taxes have to be laid upon such imports. But this is not a discriminaing tax.
According, then, to the principles laid down in Brown vs. Maryland, this Ordinance is not a violation of the clause of the Constitution which prohibits the States to tax imports.
Is it, according to those principles, a violation of the power delegated to Congress, "To regulate commerce with foreign nations and among the States ?" It is not. Those principles apply equally to both clauses of the Constitution. If the "gross amount of sales" is not an import, or not imports, it is not anything which belongs to foreign or interstate commerce, and therefore, not anything falling under the power to regulate such commerce.
[1.] According, then. to the principles laid down in Brown vs. Maryland, this Ordinance is not unconstitutional. This is the opinion of every member of this Court. But speaking for myself, I am not willing to let the decision rest on this ground alone. I do not wish to he considered, by implication, as admitting that I think the decision in Brown vs. Maryland to hr right, or as admitting that I think a decision of the Supreme Court of the. U. S. is a binding precedent for this Court. And I prefer, too, to put the decision upon the Constitution itself, as I understand the Constitution, rather thin upon any decision. I shall, therefore, consider the case further.
In my opinion, the following propositions are true:
1. The decision in Brown vs. Maryland, has been overruled by the Supreme Court of the U. S. itself.
2. The Constitution is to be construed in the sense in which it was understood by the makers of it at the time when they made it.
3. According to this sense, the Supreme Court of the U. S. has no appellate or other j 11 over this Court, and cannot, therefore, make a [MISSING TEXT] for it.
4. According to this sense, Brown cr. Maryland, ought to be overruled, if it has not been.
5. And according to this sense, the decision of the Court below, in this case, ought to be affirmed.
These are propositions of some import. I shall, therefore, bold myself excused, if I go somewhat at large, into the proofs by which I think they are established. I, alone, [MISSING TEXT]nn responsible for them, and for all that may be said in their support. What the other members of the Court may think of them, or of anything I may say in their support, I know not.
Has Brown vs. Maryland been overruled? It has, by several decisions of the Supreme Court; and first, by the decisions in the License Cases. There were three of those cases, one from New Hampshire, one from Massachusetts, and one from Rhode Island.
The facts in the N. Hampshire case were these: N. Hampshire by law, forbade "Any person, without a license, to sell wine, rum, gin, brandy, or other spirits, in any quantity". — Certain persons of the name of Pierce, bought n barrel of gin in Boston, brought it coastwise into N. Hampshire. and in N. Hampshire sold it. For this they were indicted under the aforesaid law, and were found guilty, notwithstanding their insisting that the law violated these same two provisions of the Constitution. They took their case up to the Supreme Court of the U. S.; and it affirmed the decision of the Court in N. Hampshire. ( 5 How. 554.)
Now this case is similar to that of Brown vs. Maryland, in every material respect, except that the article sold in it, was not an import from a foreign nation, but from a neighboring State. But the decision in Brown vs. Maryland, was declared to he equally applicable to the case of importations from a sister State. (12 Wheat. 449.) To the extent, then, of `commerce' and `imports' ` among the States', this decision overrules Brown vs. Maryland. — This, indeed, was admitted by the counsel for plaintiffs in error, in the case now tinder consideration.
The Massachusetts case grew out of a Law of that State, which forbade the sale of liquors in less quantity than twentyeight gallons, without a license. One [MISSING TEXT] sold liquor in less quantities than twenty-eight gallons; and some of it so sold, was of foreign product. The Court in Massachusetts first, and then the Supreme Court of the U. S., held the Law to be no violation of the Constitution.
In the last Court, the case was argued by Webster, Choate and Mallet, for the retailer; and in the argument, we have Mr. Webster's and Mr. Choate's exposition of Brown vs. Maryland. They rested their argument exclusively upon that case, They say the effect of the law was such, that in the county of the plaintiff's residence, containing 100,000 inhabitants, no license had been granted for six years.
And as to what Brown vs. Maryland decides, this is what they say:
"What is the extent of the effect of an Act of Congress? Regarded as a license to, or contract with the importer, communicating a right, to sell, according [MISSING TEXT]a the views in Brown vs. Maryland, 447, what is its extent? The plaintiff contends that it would be repugnant to, and in fraud of the license, either to ordain that no one shall buy of the importer; or to ordain that no one having bought, shall re-sell: because either prohibition would totally defeat the license itself. The license is a license to carry the article to market; to trade in it; to have access with it to the consuming capacity of the country.
"The ground on which Congress legislate, in passing such an Act, and the just expectations and reasonings of the [MISSING TEXT], prove this.
"The interception of the article, in the hands of the first buyer, on its way to a market, excludes it from market, and shuts the importer from the country as really as if he were prohibited to sell." This is the view of Webster and Choate, as to Brown vs. Maryland. And is it possible to doubt its correctness? — "The license (the Act of Congress) is a license to carry the article to a market, to trade in it, to have access with it to the consuming capacity of the country"; that is, to be allowed to sell by retail. Without retail, there can be no consumption worth talking about. ( 5 How, 505, 513.)
The decision in Brown vs. Maryland says, that the States cannot prohibit the sale of imports by wholesale. The reason of the decision equally says, that they cannot prohibit the sale of imports by retail.
Now the decision in this Massachusetts License Case says, that the States may prohibit the sale of imports, by retail — the reason of the decision equally says, they may prohibit their sale by wholesale. This reason is, that the States have power to stop the consumption of the article. And this may be done as effectually by a prohibition of one sort of sale, as by a prohibition of the other. The reason, then, on which the decision in Brown vs. Maryland is made to stand, is repudiated by this decision; and when the reason of a decision is repudiated, the decision itself is overruled. It is true, perhaps, that this ought to he said at the time when the reason is repudiated; otherwise, the ghost of the overruled case may frighten the timid or mislead the weak.
The Rhode Island Case was not unlike the Massachusetts Case.
These cases not only overrule the case of Brown rs. Maryland; but they establish just the opposite principle to the one which it established. They establish the principle that an article from abroad ceases to he all import — ceases to be an article of foreign commerce, the instant it enters, with the permission of the government of the home territory. And if it is ever to cease to be an import at all — ever to lose its foreign attributes and become naturalized, is not this the point of time at which the change must take place? The. article [MISSING TEXT] farther transformations. except rich as domestic artier undergo. Why, then, should the time when the change is to take place, be put oft' until the article comes to second or third bands; or until it comes to the consumer; or until [MISSING TEXT]is broken up into fragments. No reason appears for such postponement. If postponed, the selection may as well be of one of the points of time as of another. There is nothing in them to justify a preference of one to another. Not only so, but nothing is gained to the importer or to anybody, by any such postponement.
And this is the ground upon which the opinion or one of the Judges is frankly put — Mr. Justice Daniel. He says: "In. ports in a political or fiscal, as well as in common practical acceptation, are properly [MISSING TEXT] brought in from abroad, which either have not reached their perfect investiture or their ultimate destination, as property within the jurisdiction of the State; or which still are Subject to the power of the Government, for a fulfilment of the Condition upon which they have been adulated to entrance: as for instance goods on which duties are still Unpaid, or which are bonded, or in public ware-houses. So soon as they are cleared of all control of the Government which permits their introduction, and [MISSING TEXT]the complete and exclusive property of the citizen or resident, they are no longer imports in a political, or fiscal, or common sense."
It follows from this notion of an import, that the right of sale is not all incident of an import.
This, indeed, is the necessary [MISSING TEXT] from what was the actual decision of the whole Court, hint it is not expressed by any of the Judges. except Mr. Justice Daniel and Mr. Justice Woodbury. They express it, each for himself. (5 How, 615, 616. 61 9.) The latter uses this strong language — "It is manifest, also. whether as an abstract Proposition or practical measure. that a prohibition to import is One thing. while a prohibition to sell without a license, is another and entirely different".
It is true the other .Judges do not disavow, in words, the principles of Brown vs. Maryland, They adopt a different mode, but one which equally effects the same object — the generation mode of making a distinction where there is not a difference — a mode long since canonized by the courtesy or timidity of Courts, but a mode which is a most fruitful source of litigation. When a case is overruled, why ought it not to be overruled effectually, so that it may no longer mislead?
Mr. Chief Justice Taney, Mr. Justice Catron and Mr. Justice Nelson, put their judgments chiefly, if not altogether, upon the ground that the Laws of Massachusetts and R. Island only interfere with the retail selling of the article imported, after it has left the hands of the importer, and not with the wholesale selling of it while it remains in his hands. But this, as we have seen, is sufficient to overrule the whole case of Brown vs. Maryland. This takes its life out of it.
Mr.,[MISSING TEXT] McLean and Mr. Justice Grier, also put theft decisions upon this ground, in part, and in part upon the ground that the Stales retain a "police" power, and that these laws of Massachusetts and R. Island, as well as those of N. Hampshire, were made in the exercise of that power.
Now, if a Law, regulating the sale of wines and spirituous liquors, is a Police Law, why is not a Law, regulating the sale of any other commodity, equally a Police Law? That wines and spirits are ordinary articles of traffic — indeed, most important articles of traffic, is known to all. At the time when this decision was made, viz.: 1847, the value of imported wines and spirits amounted to over $3,000,000, a value greater than that of any other article of foreign commerce, except three or four. They are made articles of traffic by the [MISSING TEXT] Acts of Congress. If, therefore, a State, by virtue of its Police Power may regulate their sale, notwithstanding those Acts, why may it not, by virtue of the same power. regulate the sale of any other article, made an article of traffic, by those Acts? And if this be so, the amount of it is. that a State may, by virtue of its Police Power, impose a tax on the sale of any article brought into it from abroad, as soon as it enters its territory, whether it be in the hands of the importer or in the hands of anybody else. And this result is equally fatal to the decision in Brown vs. Maryland. [2.] Upon the whole, it seems necessary to ease of Brown vs. Maryland, is overruled by these Li Cases. And this effect have also the decisions in the Passenger Cases.
These cases arose out of Laws made by Massachusetts and N. York, respectively, which Laws declared, in substance, that no alien passenger should land on their shores, until he had paid a tax.
A question was made before the Courts of New York and Massachusetts, respectively, whether these Laws were not in violation of the aforesaid two clauses of the Constitution. The Supreme Court of New York decided that the N. York Law was not. Its decision was appealed from, and the ease was carried before the Court of Errors of N. York. That Court affirmed the decision.
The Supreme Court of [MISSING TEXT] Massachusetts, also, decided the Massachusetts Law not to be unconstitutional.
Both cases were carried up to the Supreme Court of the U. S. and that Court decided, by five Judges to four, Justices Wayine, Catron, McLean. Grier and McKinley. to Chief Justice Taney, Justices Nelson, Daniel and Woodbury, that the Law was unconstitutional.
The ground on which the majority put their decision was, that as long as the passenger remained on shipboard, he was to be considered an import, and to belong to foreign commerce, which import Congress had "regulated" by law, and that any tax on it by a State, was both a tax upon an import and n regulation of commerce, and was therefore prohibited by each of the aforesaid clauses of the Constitution. They held, however, that as soon as the passenger leaves the ship and lands and mingles with the citizens of the State, he becomes a subject of State taxation. Mr. Justice McLean said, "It is a tax upon a commercial operation — upon what may, in effect, be called an import. In a commercial sense, no just distinction can be made, as regards the Law in question, between the transportation of merchandise and passengers. For the transportation of both, the ship-owner realizes a profit, and each is the subject of a commercial regulation by Congress. When the merchandise is taken from the ship, and becomes mingled with the property of the people of the State, like other property, it [MISSING TEXT] 8 subject to the local Law; but until this shall take place, the merchandise is an import, and is not subject to the taxing power of the State, and the same rule applies to passengers. When they leave the ship and mingle with the citizens of the State, they become subject to its laws". (7 How. 405.)
Of the other Justices, of the majority, Wayne and McKinley concurred with McLean; and. Catron, in his opinion, also occupied this ground; and with him concurred Grier. Caftan said — "Again, give the argument all the benefit it claims, concede the full municipal power of the State to tax all persons within her territory, as a general rule, whether they have been there a year or an hour, and still she could not impose a capitation tax on these passengers, by the hand of her own tax collector. The tax was demanded while they were on board". (7 How. 447.) And again, "It is also insisted that the States may tax all persons and property within their respective jurisdictions, except in cases where they are affirmatively prohibited. This is a truism not open to denial. lint Constitutional exceptions to the State power, are so broad as to render the claim valueless in the present instance. States cannot lay export duties, nor duties on imports, nor tonnage duties on vessels. If they tax the Master and crew, they indirectly lay a duty on the vessel. If the passengers on hoard are ta, red, the protected goods, the imports, are reached". ( Ibid. 452.)
The position, then, of the majority is. that the passenger, as long as h, remains on shipboard, continues to he an import and an article of foreign commerce, not taxable by n State; but as soon as he steps on land and mingles with the citizens, he ceases to be an import. and ceases to belong to foreign commerce, and becomes taxable by the State on whose shores he steps. Now, in the case of this "import." there can be no "breaking of bulk." no opening of "package." no "sale by retail or by wholesale." after it enters the country. to effect this change. The passenger — import — steps from ship to shore; that makes the transformation. And why not? there is but one step from the sublime to the rediculous. But according to Brown vs. Maryland, something has to be done, after the import gets on shore, before it ceases to be an import. It does not cease to be one the instant it enters the country. Marshall, C. J., says: "But while we co admit that there must be a point of time when the prohibition ceases, and the Power of the State to tax Commences, we cannot admit that this point to time is the instant that the articles enter the country", The decision of the majority the instant the import, — the passenger — enters the country, he becomes taxable by the State, that decision necessarily overrules the decision in Brown vs. Maryland.
Is it to be said that from the [MISSING TEXT] of this import — the dash of the human which it has [MISSING TEXT] it — the this condition as to "breaking package" and so forth, applicable to ordinary imports, to make them cease to be imports, is to be dispensed with? Be it so; still, there is left enough in the decision to overrule Brown vs. Maryland The point of the decision in that case is, that a State has no Power by which it can defeat importations, and that a power to tax the import whilst it is an import, is a power by which it could defeat importations,
Now, as we have seen a power to tax the article of import, after it has ceased to be an import by being mixed "with the property of the country", a power to tax it in any of its forms, divided or undivided, or at any of its stages in including the last stage, that of its consumption, is, if exerted, just as effective to defeat its importation as is a power to tax it whilst be it is In the hands of the importer, and before it has ceased to bean import; so, a power to tax passengers after they has landed, if exerted, equally as effective to keep them from ever landing — from ever thinking of trying to land an — as a power to tax them before they have landed.
But notwithstanding this, the majority of the Judges consider the State to have the power to tax the passenger, after he [MISSING TEXT] and mingled with its Citizens to have the Power to pass a Law, the effect of Which would be, to prevent passengers from landing at all; that is to say, to have a power by which it can stop immigration — importation. This is in the Lush of Brown vs. Maryland.
[3.] The decisions, therefore, in the passenger cases, overrule Brown vs. Maryland.
[4. ]The decision of the Supreme Court of the U. S. in Groves at al. vs. Slaughter, affirms the principles laid down by the same Court, in the New Hampshire License Case, viz.: that as to commerce between State and State, the States may regulate, provided they do not make any regulation which hall be in conflict with some regulation of Congress. (15 Peters, a10.) The question in Groves at al. vs. Slaughter, was as to a State's right to prohibit the introduction of slaves into its limits, "as merchandise or for sale." The Court held, Baldwin dissenting, that a State had this right. And would any one maintain that a State had not equally this right, with respect to the importation of slaves from Africa or Cuba? Yet, if Brown vs. Maryland be law, a State could not do that. That could only be done by Congress.
But if the case of Brown vs. Maryland has not been overruled I think it should be. I consider it to be a decision not warranted by the Constitution.
[5.] Whether it is or not, is therefore a question which I now proceed to discuss. In discussing it, I shall assume one proposition to be true, that the Constitution, like every other instrument made by men, is to he construed in the sense in which it was understood by the makers of it at the time when they made it. To deny this is to insist that a fraud shall be perpetrated upon those makers or upon some of them.
Can the sense in which the makers of the Constitution understood it at the time they made it, be now ascertained? The Constitution was made by conventions of the States called for the purpose of examining its meaning, and of [MISSING TEXT] or rejecting it according as they liked that meaning or disliked it. These conventions were, in the great majority of eases, divided into two parties, one in favor of adopting the Constitution, and the other against adoption unless it should be amended. These parties debated the important clauses of the Constitution and otherwise manifested their sense of its meaning. The proceedings of a large majority of these conventions are preserved. They are to be found in Elliot's Debates. This, then, is one source from which the sense in which the makers of the Constitution understood it is to be drawn.
How from this source? It is manifest, that what the party friendly to adoption said, was the meaning of the Constitution, was the meaning. which they understood it to have, was the meaning which the makers of the Constitution understood it to have; for they being the majority were the makers of it. Now these debates and proceedings show what the party friendly to the adoption of the Constitution said was this meaning.
They also contain the acts of ratification and the propositions and recommendations for amendment of the Constitution — of its makers. These all throw on the subject.
There are other sources from which evidence may be drawn such as the contemporary and continued Acts of the [MISSING TEXT] showing their view of the meaning of the Constitution, and the manifestations of popular sentiment about the time of the adoption of the Constitution, or soon afterwards, and time o s the showing what the people thought in respect to its meaning.
The question what the makers of the Constitution meant by the instrument which they made, is eminently a question of fact. It is, in its own nature, in the highest degree historical. To get the meaning fully, we must have a view of the Act — the actors and the circumstances — we must see the instrument itaround the instrument. self — the makers of the instrument — and the facts standing.
I pretend not to see all this — still I think I see some of it, and what I see I shall attempt to bring forward.
It will appear, I think, from the evidence which I shall produce that the sense In which the makers of the Constitution understood it, when they made it, is e propositions: [MISSING TEXT] in the following preposition:
1. That the Constitution delegated to the General [MISSING TEXT] or any department thereof, no power by implication, but only delegated such powers as it expressly enumerated.
2. That it delegated no exclusive power, unless the delegation was said to be exclusive.
3. That it laid no prohibition upon the States, except such as it specified.
4. That the words used in it, if susceptible of more meanings than one, were used in the meaning which was least favorable to the delegation of power, and most favorable to its retention.
Let us, then, go to the proofs. And first, to those contained in the debates and proceedings of the State conventions which agreed to the Constitution. In these proofs will be found evidence to apply to all of the four propositions, but [MISSING TEXT] to the first, second and third. I shall not, in every instance, stop to show the application of the evidence to the particular point to which it will apply.
Let us commence with the convention of Massachusetts.
In this convention, Parsons, a friend to the adoption of the Constitution, and after its adoption, the most distinguished Judge that Massachusetts ever had, said, "It was objected that by giving Congress a power of direct taxation, we give them power to destroy the State Governments by prohibiting them from raising any moneys: but this objection is not founded in the Constitution. Congress have only a concurrent right with Such State [MISSING TEXT]; in laving direct taxes — and an exclusive right — and the right of each State Is equally extensive and perfect as the right of Congress. Any law, therefore, of the U. S. for securing to Congress more than a concurrent right with each State is usurpation and void." (2 Ell. Deb. 93.)
The paragraph which provides "That the writ of habeas corpus shall not be suspended, unless in cases of rebellion nr invasion" "Was read, when, after a question by Gen Thompson, Hon. Mr. Adams, in answer to an inquiry of the Hon. Mr. Taylor, said, that this power. given to the GPm.rn1 Government, to suspend this privilege in cases of rebellion and invasion, did not take away the power of the several States, to suspend if they shall see fit." (2 Ell. Deb. 108.)
So Judge Sumner, "Congress have only power to suspend the privilege to persons committed by their power authority. suspend [MISSING TEXT] committed under the authorities of the States will still have a right to this writ." (Id. 109.)
After the debate had come to a close, "Mr. Parsons moved that this Convention do assent to and ratify this Constitution."
This motion seems to have been received with doubtful favor. Gen. Heath, after some Strong appeals to the Convention for a union, acknowledged, "But I have observed from the first, that many gentlemen appeared opposed to the system and this, I apprehend, arises from their objections to [MISSING TEXT] [MISSING TEXT] parts of it. Is there not a way in [MISSING TEXT] minds may be relieved from embarrassment? I thin there is" And then he proceeded to state the way which was to ratify the Constitution as it was, and at the same time propose amendments to it, to meet the objections to it. (2 Ell. Deb. 122.)
After Gen. Heath sat down, his Excellency the President, (who was John Hancock) rose and observed, "That unfortunately, through painful indisposition of body he had been prevented from giving his attendance in his place; but from the information he had received, and from the papers, there appeared to have been a great dissimilarity of sentiments in the Convention. To remove the objection of some gentlemen, he felt himself constained. He said to hazard a preposition for their Consideration
My motive says he. [MISSING TEXT] from my earnest desire to this Convention, my fellow-citizens and the public at large, that this Convention may adopt such a form of Government as may extend its good influence to every part of the United States, and advance the prosperity of the whole world. His Situation. his Excellency said. had not permitted him to enter into the debates of the Convention — it however appeared to him necessary, from what had been advanced in them, to adopt the form of Government proposed; but observing a diversity of sentiment in the gentlemen of the Convention, he had frequently had conversation with them on the subject; and from this conversation, he was induced to propose to them whether the introduction of some general amendments would not be attended with the happiest consequences. For that purpose, he should, with the leave of the Honorable Convention, submit to their consideration a proposition, in order to remove the doubts and quiet the apprehensions of gentlemen."
He then read his propositions — the first of them was in the following words: "First, that it be explicitly declared, that all powers not expressly delegated by the aforesaid Constitution, are reserved to the several States, to be by them exercised."
These propositions being thus submitted to the Convention, John Adams moved that they should be taken under consideration by the Convention. (2 Ell. 120, 121, 122, 128, 125.)
He prefaced his motion with a speech, in which these words are to be found: "Mr. President, I feel myself happy in contemplating the idea that many benefits will result from your Excellency's conciliatory proposition to this Commonwealth and to the United States; and I think it ought to precede the motion made by the gentleman from Newberryport, (Parsons, the motion being to ratify the Constitution) and to be at this time considered by the Convention. I have said that I have had my doubts of this Constitution. I could not digest every part of it as readily as some gentlemen; but this sir, is my misfortune — not my fault. Other gentlemen have had their doubts; but in my opinion, the proposition will have a tendency to remove such doubts, and to conciliate the minds of the Convention and the people without doors." "I have observed the sentiments of gentlemen on this subject, as far as Virginia; and I have found that the objections were similar in the newspapers, and in some of the Conventions." (2 Ell. Deb. 128-4.)
This motion was debated; and Mr. Adams Again spoke. — He said, among other things, "Your Excellency's first proposition is, `that it be explicitly declared, that all powers not expressly delegated to Congress, are reserved to the several States, to be by them exercised.' This appears to my mind to be a summary of a bill of rights, which gentlemen are anxious to obtain. It removes a doubt which many have entertained, respecting the matter." "It is consonant with the second made in the present Confederation.' (Id. 131.) Parsons, Dana, Strong and others, warm friends of the Constitution, earnestly urged the adoption of the proposition.
At length the proposed amendments were referred to a [MISSING TEXT]. This committee reported a form of ratification applicable to the Constitution; and added to the form these words: "And as it is the opinion of this Convention, that certain amendments and alterations in the said Constitution, would remove the fears and quiet the apprehensions of many of the good people of this Commonwealth, and more effectually guard against an undue administration of the Federal Government, the Convention do therefore recommend that the following alterations and provisions be introduced into the said Constitution: I first, that it be explicitly declared, that all powers not expressly delegated by the aforesaid Constitution, are reserved to the several States, to be by them exercised."
Then follow eight others — then is added: "And the Convention do, in the name and in the behalf of the people of this [MISSING TEXT], enjoin it upon their representatives in Congress at all times, until the alterations and provisions aforesaid have been considered agreeably to the 5th article of the said Constitution, to exert all their influence, and use all reasonable and legal methods to obtain a ratification of the said alterations and provisions, in such manner as is provided in said article."
The question was then put, whether the Convention would accept of this report; and it was decided in the affirmative, by a close vote, viz.: 187 to 168. ( Id. 176-7-8.)
It is 1pparent. from these few extracts, that there was a very strong opposition to the Constitution — one so strong as to make it extremely doubtful whether a majority could be obtained for its adoption. This opposition, it appears too, all rested on objections which resolve themselves into this: the State was giving up too much power to the General Government; especially as there was some room to doubt the extent of some of the grants of power. It is evident that power was a thing which the Convention wished to give. in the very least possible quantity; and it is equally evident that they were [MISSING TEXT] to remove everything from which the unscrupulous might [MISSING TEXT] that they had granted more power than they had [MISSING TEXT] expressed in the grant. Hence, they were not satisfied .with assurances from the friends of the Constitution, that the, [MISSING TEXT] would have `concurrent' power with the General Government, as to taxes; the habeas corpus, c.; and that this concurrent power would be `perfect' — that is to say, notwithstanding [MISSING TEXT] that it was necessarily to be implied that no power .vas given to the General Government, except such as was expressly given; and none given exclusively, except it was said Lo be exclusive. These friends had to go farther: they had to [MISSING TEXT] to enjoin it upon their Representatives in Congress, "To exert all their influence, and use all reasonable and legal methods to obtain a ratification of said alterations and provisions", one of which was, as we have seen, "That it be explicitly declared, that all powers not expressly delegated by the aforesaid Constitution, are reserved to the several States, to be by them exercised."
The meaning of this article plainly is, that although it is already, as we think, impliedly declared that all powers not expressly "delegated" "are reserved", yet we want it also expressly declared.
So much for the sense in which Massachusetts understood the Constitution, when she agreed to it. Let us proceed to Connecticut.
We have only a fragment of the Connecticut debates on the question of the adoption of the Constitution. That contains, in all, four or five speeches only; but among them, two of Oliver Ellsworth, who had been a member of the Convention which framed the Constitution, and who was to be Chief Justice of the Supreme Court of the United States. He said, "The first objection is, that this clause, (the power to lay and collect taxes, c.) extends to all the objects of taxation. But though it does extend to all, it does not extend to them exclusively. It does not say Congress shall have all these sources of revenue, and the States none; all excepting the impost, still lie open to the States". (2 Ell. Deb. 190.)
Here is an, [MISSING TEXT], that a grant of a power to tax every person and thing taxable, and to tax them without limit, is not an exclusive grant — is not a grant of the whole taxing power, but only of half of it; an omission that, notwithstanding such a grant, as much power is retained as is granted, That is to say, an admission that although just as much power to tax is given to the General Government, as by the use of language can be given it; yet, it is not to be implied from thence that equally as much power is not retained by the States; that unless it were also expressly said in the Constitution this power is exclusively granted to Congress, or prohibited to the States, the States have it concurrently. Now if, from such a grant as this, no implication was to be made in favor of the General Government, or against the States, was not the Convention obliged to infer that such an implication could not be made
from any merely affirmative grant; such, for instance, as the grant to regulate commerce.
Taking, then, Judge Ellsworth as a true exponent of the idea of the Constitution entertained by the Convention of Connecticut, we must say that that idea was much the same as
the idea of the Massachusetts Convention. Let us pass to N. Hampshire.
We have no debates of the Convention of this State, and only the fragments of one speech, and that confined to the slavery clause; but we have, in the form of ratifying the Constitution, matter from which we may infer what was the understanding of the Convention, as to the meaning of the Constitution when they agreed to it. They adopt the Massachusetts form, including the proposed amendments and the Injunction upon their members in Congress, to use their best efforts to get the amendments made. They, therefore, had the same understanding, as to this meaning, which Massachusetts had. And what this was we have seen. (1 Ell. Deb. 325, [MISSING TEXT] 6.)
Let [MISSING TEXT] then, come to the great State of N. York.
The question of adopting the Constitution was ardently debated in the Convention of this State, and the division of [MISSING TEXT] on it, was almost equal.
The friends of adoption urged, in respect to the great power of taxation, that it would be concurrent. To this, Williams, an opposer of adoption, answered, "Suppose, however, that the States have concurrent jurisdiction with Congress, in taxation, it is evident, as the Laws of Congress are the Supreme Laws of the land, that their taxes, whenever they interfere with the taxes laid by the States, must and will claim a priority as to the collection; in fact, that they may, in order to pass the Laws necessary for the end, abolish the State taxes".
This brought Alexander Hamilton to his feet. He combatted this idea most vehemently. He said, "With regard to th6 jurisdiction of the two Governments, I shall certainly admit that the Constitution ought to be so formed as not to prevent the States from providing for their own existence; and I maintain that it is so formed. This is conceded by one gentleman, and in the next breath the concession is retracted. He says Congress have but one exclusive right in taxation; that of duties on imports. Certainly, then, their powers are only concurrent. But to take off the force of this obvious conclusion, he immediately says that the laws of the U. S. az. [MISSING TEXT] supreme, and that where there is one supreme, there can be no concurrent authority. And further, that where the Laws of the Union are supreme, those of the State must be subordinate, because there cannot be two supremes. This is curious sophistry. That two supremes cannot act together is false. They are inconsistent only when aimed at each other, or at an indivisible object. The Laws of the United States are Supreme, as to all their proper Constitutional objects. The Laws of the States are supreme in the same way. Suppose both Governments should lay a tax of a penny on an article, had not each an independent and uncontrollable power to collect its own tax? The meaning of the maxim — there cannot he two supremes — is simply this: two powers cannot be senrsme over each other". That is to say, that with respect to one concurrent power, that of taxation, the General Government cannot he supreme over the State Governments. nor the laver supreme over the former; and if this is true of one such power. it is true of all; and as nearly all of the granted powers are such, it must be true of nearly all the granted powers — Legislative, Executive and Judicial. This inference was too obvious for the Convention not to have made it.
This touch of State rights was displayed, it is to be remembered, however, before the Constitution was adopted; and in order to make it palatable to the States, and so get them to swallow it. (2 Ell. Deb. 355, `6.)
Not satisfied with this, he returns to the subject next day. He enlarges; he becomes more emphatic; he illustrates, and he generalises. The speech is a most noteworthy one. I shall indulge myself in citing it somewhat fully. He says — "Sir, with respect to the subject of revenue, which was debated yesterday, it was asserted, that in all matters of taxation except in the article of imposts, the united end individual States had a concurrent jurisdiction, and that the State Governments had an independent authority to draw revenues from every source but one. The truth of these positions will appear on a slight investigation. I maintain that the word supreme imports no more than this: that the Constitution and Laws, made in pursuance thereof, cannot be controlled or defeated by any other Law. The Acts of the United States, therefore, will be absolutely obligatory, as to all the proper objects and powers of the General Government. The States, as well as individuals, are bound by these Laws; but the Laws of Congress are restricted to a certain sphere, and when they depart from this sphere, they are no longer supreme or binding. In the same manner, the States have certain independent powers, in which their Law, arc supreme: for example, in the making and executing Laws concerning the punishment of certain crimes, such us murder, theft, c., the States cannot he controlled. With respect to certain other 01, [MISSING TEXT] tee the n[MISSING TEXT] of the two Governments are concurrent. [MISSING TEXT] I instanced, yesterday, 0 tax on a [MISSING TEXT] article both might lay the tax — ho", might collect it, without [MISSING TEXT]e or [MISSING TEXT] If the individual should he unable to pas' both, the first seizure would hold the property. Here, the Laws are not in the way of each other; they are independent and supreme.
"The case is like that of two creditors: each has a distinct demand; the debtor is held equally for the payment of both Their suits are independent, and if the debtor cannot pay both, he who takes the first step secures his debt. That the States have an undoubted right to lay taxes in all cases in which they are not prohibited, is a position founded on the obvious and important principle in Confederated Governments, that whatever is not expressly given to the Federal Head, is reserved to the members. The truth of this principle must strike every intelligent mind. In the first formation of Government, by the association of individuals, every power of the community is delegated, because the Government is to extend to every possible object; nothing is reserved but the inalienable rights of mankind; but when a number of these societies unite for certain purposes. the rule is different, and from the plainest reason: they have already delegated their sovereignty and their powers to their several Governments; and these cannot be recalled and given to another, without an express Act. I submit to the committee, whether this reasoning is not conclusive". (Ibid. 361, `2, `3.)
This is plain talk. "Whatever is not expressly given to the Federal head is reserved to the members". This is applicable not merely to the tax clause. It covers the whole of the powers spread out in the Constitution. And it comes from the very highest quarter. Col. Hamilton was the first man of his day of his party. He had been too a member of the Federal convention which framed the Constitution, and he entirely knew, as much as any living man. what were the purposes and objects of those who were the chief architects of that instrument in that Convention, as well as what were the fears and TAU of those who were not its chief architects. And In order to get the great State of New York to adopt it when the question of adoption is a touch and go one, he tells it in his place in this manner so passionately earnest that the Constitntion [MISSING TEXT] to the General Government no power except such as is expressly granted. Can falsehood be imputed to Alexander Hamilton? If it cannot, this was the truth of the case, for he was not deceived himself.
But if he were, can there be a doubt that such a declaratiou as this did not make its impression on those who heard it that in a word, in adopting the Constitution, the adopters did not take it as having this meaning. And if they so understood it and were made so to understand it by him and his friend:: (for none of those uttered a word of dissent) so it is to be understood. — That is the meaning which they agreed to.
What was said by Chancellor Livingston and by John Jay went to confirm these declarations of Hamilton's. (2 Ell. Del), 146,381.)
Even with all this the Convention could barely be induced to agree to the Constitution. The rote was thirty-nine in [MISSING TEXT] of it to thirty-six against it. And the ratification itself was exceedingly circumspect and guarded. It was preceded by, declaration of principles generally, and of principles applicable especially to the instrument they were about to agree to. It declared, among other things, "That the powers of Government may he reassumed by the people [MISSING TEXT] it become necessary to their happiness, that every power, [MISSING TEXT] and right which is not by the said Constitution clearly delegated to the Congress of the United States, or the departments of the government thereof remains to the people of the several States, nr to their respective State governments, to whom they may have granted the same, and that those clauses of the Constitution which declare that Congress shall not have [ILLIGIBLE TXET] riot CM Ply the, Congress is [MISSING TEXT] tilled to any powers not given by said Constitution, but such clauses are to he construed either as exceptions to certain specified powers, or as inserted merely for greater caution". That is. no power is to be held to he conveyed by implication,
After going through with the declaration of rights, the form of ratification proceeds thus; "Under these impressions, and declaring first the rights, [MISSING TEXT] cannot he abridged, and that the explanations aforesaid are consistent with the said Constitution", e. We do assent to and ratify the said Constitution.
Now, the question is, did the New York Convention, in agreeing to the Constitution, think it was giving away to the General Government more of the power of New York State than Alexander Hamilton told them they were giving — more, in a word, than they were asked to give? They were told by Hamilton that it is an "Obvious and important principle in confederated governments, that whatever is not expressly given to the Federal head, is reserved to the members." The Convention then was only requested to give such powers as were expressed and no others. This was the extent of the request. Is it to be presumed that the Convention, exceedingly [MISSING TEXT] as they were of the Constitution, at first gave more ?ban they were requested to give?
If by any possible straining of words that could be presumed, the presumption would be rebutted by the form of the ratification. When this form says "That those clauses in the said Constitution which declare that Congress shall not have or exercise certain powers, do not imply that Congress is entitled to any powers not given by the said Constitution." It says that no clauses in it shall do this; for if an implication of a grant cannot be drawn from these clauses, still less can it be drawn from any other: and this is the same as saying that no implied power is granted to Congress: but only express powers are granted.
This, then, is what New York understood she was doing, when she agreed to the Constitution, viz.: that she was giving to the General Government the powers expressed in the instrument, but no others — not one implied power; and that she was giving no expressed power exclusively, unless it was said to be exclusive.
Let us pass on to another State's proceedings, Pennsylvania.
In the Convention of this State for ratifying the Constitution, the friends of the Constitution seem to have had the field of debate pretty much to themselves — and of those friends, Judge Wilson. who had been a leading member of the Federal Convention which framed the [MISSING TEXT], the member who, probably, next to Madison, had the greatest share in framing it as it WAS framed, appears to have been eminently conspicuous.
McKean, who was afterwards Chief Justice of the State, made in speech or two. One of his speeches was elaborate and
careful. I shall quote from him and Wilson to show what meaning they told the Convention the Constitution had when persuading the Convention to agree to it.
In this Convention, as in those of the other States which have been noticed, it seems to have been a prominent objection to the Constitution that it contained no bill of rights. In answer to this, Wilson says in one place, "It is urged as a general objection to this system that the powers of Congress are unlimited and undefined, and that they will be the judges in all cases of what is necessary and proper for them to do." "To bring this subject to your view, I need do no more than point to the words in the Constitution. beginning at the 8th See. Art. lst. "The Congress (it says) shall have power," c. I need not read over the words, but I leave it to every gentleman to say whether the powers are not accurately and minutely defined as can well be done on the same subject in the same language. The old Constitution is as strongly marked on this subject, and even the concluding clause, with which so much fault has been found, gives no more or other powers, nor does it in any degree go beyond the particular enumeration; for when it is said that Congress shall have power to make all Jaws which shall be necessary and proper, those words are limited and defined by the following: "For carrying into execution the foregoing powers". It is saying no more than that the powers which we have already particularly given shall be effectually carried into execution" (2 Ell. Deb. 468.) And again, "Baden* die P. M. he said, "Whoever views the matter in a true light, will see that the powers are as minutely enumerated and defined as was possible, and will discover that the general clause against which so much exception is taken, is nothing more than what was necessary to render effectual the particular powers that are granted. And again "Can any cause of distrust arise here? Is there any increase of risk? or rather are not the enumerated powers as well defined here as in the present articles of Confederation? (Ibid. 481, 2.)
Now be it remembered that the "present articles of confederation" had in them this distinct article:
Each State retains its sovereignty, freedom and independence, and every power, jurisdiction and right which is not by this 6onfederation expressly delegated to the United States in Congress assembled".
Judge Wilson then means to persuade the Convention he is addressing, that although this clause is not contained in the new instrument, yet the powers intended to be delegated by that instrument are no greater or other than they would be if it were contained in the instrument — agreeing, doubtless, with Hamilton, that "In Confederated Governments, whatever is not expressly given to the Federal head, is reserved to the members.
Indeed, all the rest of what has been quoted from him and much more that has not been quoted, amounts to the same thing. Could the Convention be supposed to doubt Wilson in respect to this point? especially when he was seconded by Judge McKean in this style. As to the objection that there was no bill of rights, Judge McKean said "Again, because A is unnecessary; for the powers of Congress being derived from the people in the mode pointed out by this Constitution, and being therein enumerated (that is, expressed ONE BY ONE) and positively granted, can be no other than what this positive grant conveys. ( Locke on Government, vol. ii b. 2, chap. 2. sec. 140, and in the 13th chap. sec. 152. 2 Ell. Deb.)
With this exposition of the meaning of the Constitution, by these two distinguished friends of it, (Wilson was sateen wards a Judge of the Supreme Court of the U. S.) the Convection of Pennsylvania adopted it. And can it be doubted that the Convention understood the Constitution in this sense.
Let us pass to another State, N. Carolina. In the Convention for ratifying the Constitution in that State, Mr. Maclaine, replying to those who objected to the Constitution, that it contained no bill of rights, said, "It would be very extraordinary to have a bill of rights, because the powers of Congress are expressly defined, and the very definition of them is as valid and efficacious a check, as a bill of rights could be, without the dangerous implication of a bill of rights. The powers of Congress are limited and enumerated again: "it is as plain a thing as possibly can be, that Congress can have no power but what we EXPRESSLY give them. ( 4 Ell, Deb. 140-1.)
Gov. Johnston, the President of the Convention, in answer to the same objection, said, "The Congress cannot assume any other powers than those expressly given them, without a palpable violation of the Constitution. ( Ibid. 142.)
Judge Iredell, who had been a member of the Federal Convention, for drafting the Constitution, and who was to become a Judge of the Supreme Court of the U. S., and who was in himself, a man of clear head, replying to the same objection, said, "Of what use therefore, can a bill of rights be in this Constitution, where the people expressly declare how much power they do give; and consequently retain all they do not? ft is a declaration of particular powers by the people to their representatives for particular purposes. It may be considered as a great power of attorney, under which no power can be exercised, but what is expressly given. Did any man ever hear before, that at the end of a power of attorney, it was said the attorney should not exercise more power than was there given him." Is not this the true idea of all Constitutions? They are instruments by which principals — people-confer power — powers upon servants, agents, presidents. members of Congress — Judges. These have but a naked authority — one coupled with no interest — one founded on no consideration; one. therefore, which is to be construed strict/y. [MISSING TEXT] dispute between the principal and agent. ns to the meaning of the power of attorney, does it lie in the month of the agent, to pronounce what is the meaning? Just the opposite. The principal may, at will, revoke the whole power; may he not, then, do the lesser thing — interpret its meaning?
In spite, however, of all that the friends of the Constitution could say, the Convention actually rejected it, by a great majority — by 184 to 84.
The Convention determined that the Constitution ought to he amended, before it should be agreed to by N. Carolina; and that it ought to be amended so as to contain these, among other things:
"1. That each State in the Union shall respectively retain every power, jurisdiction and right which is not, by this Constitution, delegated to the Congress of the United States, as to the departments of the Federal Government."
"17. That those clauses which declare that Congress shall not exercise certain powers, be not interpreted in any manner to extend the power of Congress; but that they be construed either as making exceptions to the specified powers where this shall be the Case, or otherwise, as inserted merely for greater caution." ( I d. 244-6.)
Notwithstanding that the friends of the Constitution told the Convention that this was all that the Constitution meant as it stood unamended. the majority would not be satisfied, but insisted upon having it so nominated in the bond.
Afterwards N. Carolina, by Convention, agreed to the Constitution. But it is not to he presumed that she considered the Constitution to convey to the General Government more powers than its friends, Maclain, Johnston and Iredell, being the spokesmen. represented it to convey; that is to say, more than the express powers.
We have only [MISSING TEXT] or four speeches made in the Convention of South Carolina, which ratified the Constitution; and they not very pertinent to the point under consideration. Bet we are at no loss to know what that State considered herself as giving to the General Government, when she agreed to the Constitution. We may know this from two sources. First, from the form of [MISSING TEXT]. The ratification was preceded by this declaration, "This Convention doth also declare, that no section or paragraph of the said Constitution warrants a construction that the Stales do not retain every power not [MISSING TEXT] relinquished by them, and vested in the General Government of. the United States", (1 Ell. Deb. 325.)
Second. From the action and debates of the Legislature which called the State Convention for ratifying the Constitution. That Legislature debated the Constitution itself, at considerable length, before it would ever make a call of such a Convention. That Legislature was composed of some of the [MISSING TEXT] first men of the State. Among them were Charles Pinckney, Charles [MISSING TEXT] Pinckney, John Rutledge and Pierce Butler. the members from South Carolina to the Federal [MISSING TEXT] which drafted the Constitution. These were all friends of the Constitution. In persuading the Legislature to make the (.311, and in answer to objections to the Constitution, that it does not guaranty liberty of the press, Gen. Pinckney said, The General Government has no powers but what are expressly granted to it". (4 Ell. Deb. 313.) No friend of the Constitution said nay to this. The Legislature, therefore, determined to call the Convention, and did call it; and that Convention agreed to the Constitution, in the manner above stated.
The S. Carolina Convention then took the Constitution to convey only express powers.
Rhode Island, like N. Carolina, would not, for a long time. accept the Constitution at all. When she did accept it, she accompanied the act with certain explanations and declarations; which explanations she declared to be consistent with the Constitution. Among them was this: "That the rights of the States, respectively to nominate and appoint all State. officers and every other power. jurisdiction and right, which is not, by the said Constitution. clearly delegated to the Congress of the V. S. or to the departments of the Government thereof, remain in the people of the several States, or their respective State Governments, to whorl: they may have granted the same; and that those clauses in the Constitution, which declare that Congress shall have or exercise certain powers, do not imply that Congress is entitled to any power not given by the Constitution; but such clauses are to be construed as exceptions to .certain specified powers, or as inserted merely for greater emotion."
Rhode Island, like the rest, thought, in agreeing to the Constitution, she was giving only such powers as she menioned expressly.
Let us pass to the great State of Virginia.
It was only after a mighty struggle, that the friends of the Constitution could induce the Convention of Virginia to adopt the Constitution at all. Patrick Henry, George Mason, James Monroe, Grayson, and other distinguished men opposed its adoption, without previous amendments. Pendleton, Nicholas, Randolph, Marshall, afterwards C. Justice of the S. Court of U.S., Madison, and others of note, urged its adoption. After a protracted debate, and pledges on the part of its friends, that certain amendments should be made to it, if they could cause that to be done, it was accepted; but with a declaration accompanying the act, showing very clearly, that the Convention did not consider the Constitution as conferring on the General Government any powers but those expressed in it.
But what power did its friends say it conveyed, when they were engaged in the business of persuading the Convention to take it? Let them speak for themselves.
Mr. Tyler had said — "Suppose that the time should come that a King should be proposed by Congress? Will they not he able, by the sweeping clause, to call In foreign assistance and do whatever they think proper, to carry this proposition into effect?
To this Mr. Madison replied, "With respect to the supposed operation of what was denominated the sweeping clause, the gentleman, he said, was mistaken; for it only extended to the enumerated powers. Should Congress attempt to extend it to any power sot enumerated, it would not be warranted by the clause". ( 8 Ell. Deb. 458.)
The "sweeping clause" is the one which declares that Congress "Shall have power to make all Laws which shall be necessary and proper for carrying into execution the foregoing power c.
What Mr. Madison says, amounts, then, to this; that this clause does not give Congress power to make any Law for carrying into execution any power that is not "enumerated" in the Constitution: that is to say, for carrying into execution any implied power.
And this is the same as saying the Congress has no implied powers at all; for it is saying, that if they have implied powers, they yet have no power to carry them into effect — the clause giving Congress power to carry powers into effect, not extending to implied powers.
Again he said, "As to a solemn declaration of our essential rights, he thought it unnecessary and dangerous — unnecessary, because it was evident that the General Government had no power but what was given it, and dangerous because an enumeration which is not complete, is not safe".
Now, a "declaration" or enumeration of reserved rights, could not be said to be unnecessary, unless there was an enumeration of delegated rights; saying, then, that such declaration or enumeration of reserved rights was unnecessary, Mr. Madison said that there was an enumeration, a counting out, one by one, of the delegated powers.
So, such enumeration or "declaration" of reserved rights, would only be "dangerous," because an enumeration of reserved rights would give ground to the implication that all rights not enumerated, were delegated, and a complete enumeration of reserved rights, is a difficult thing to accomplish; whereas, if the delegated powers are the ones that are enumerated, as is the case with the Constitution, as it stands, the implication will be that all powers not enumerated are reserved. Mr. Madison said to the Convention, in effect, adopt the Constitution as it stands — you give away no power that you do not enumerate.
Gov. Randolph's testimony is most explicit and detailed on this point. He says, "Permit me to return to that clause which is called by gentlemen the sweeping clause. I observed, yesterday, that I conceived the construction which had been put on this clause by the advocates of the Constitution, was too NARROW, and that the construction put upon it by the other party, was extravagant. The former contend that it gives no supplementary power, but only enables them to make Laws to execute the delegated powers; or in other words, that it only involves the powers incidental to those expressly delegated. By incidental powers, (the italics are his,) they mean those which are necessary for the principal thing". This is Gov. Randolph's testimony as to what the advocates of the Constitution told the Convention it meant. He, himself, was hardly to be called an advocate of it. He spoke [MISSING TEXT] it and voted against it in the Federal Convention, of which he was a member. Still, he went for ratifying it in this, the Virginia Convention. He, therefore, is as good a witness as could be, with reference to what the friends of the Constitution represented to he its meaning, when trying to get it ratified.
He then says, "Let me say that, in my opinion, the adversaries of the Constitution wander, equally, from the true meaning. The gentleman supposes that complete and unlimited Legislation is vested in the Congress of the United States. This supposition is founded on false reasoning. There is not a word said in the State Government, of the powers given to it, because they are general: but in the general Constitution the powers are enumerated. Is it not, then, fairly deducible, that it has no power but what is expressly given it? for if its powers were to be general, an enumeration would he needless.
"But the insertion of the [MISSING TEXT] restrictions, (that is, on Congress,) has given cause of triumph. it seems, to gentlemen. They suppose that it demonstrates that Congress are to have powers by implication. I will meet them on that ground. I persuade myself that every exception here mentioned, is an exception, not from general powers, but from the particular Pomerrs therein vested".
He then goes through with every restriction on Congress, and shows that it is an exception out of some expressly delegated power, and out of no implied power. Here is a specimen of his style of doing this: "To what power in the General Government is the exception made, respecting the [MISSING TEXT] of negroes? Not from a general power, but from a particular power, expressly enumerated. This is an exception from the power given them, of regulating commerce", He asks. "Where is the power to which the prohibition of suspending the habeas corpus is an exception? I contend, that by virtue of the power given to Congress, to regulate Courts, they would suspend the writ of habeas corpus. This is, therefore, an exception to that power". (3 Ell. Deb. 463, `4.)
Thus, he labors through these restrictions on Congress,, 0 the end, insisting that even from them, it was riot to he inferred that Congress was to have any implied power, or any power, except enumerated powers,
So George Nicholas, "But it is objected to for want of bill of rights. It is a principle universally agreed upon, that all powers not given, are retained". That he means all not expressly given, we shall see. "In England, in all disputes between the King and people, recurrence is had to the enumerated rights of the people to determine. Are the rights in dispute reserved? Arc they included in Magna Charta, Bill of Rights,c.? If not, they are, generally speaking, within the King's prerogative. In disputes between Congress the people, the reverse of the proposition holds. Is the right enumerated? If not Congress cannot meddle with it",
"Which is the most safe the people of America know what they have relinquished for certain purposes. They also know that they retain everything else, find have a right to resume what they have given up, if it he perverted from its intended object". ( Ibid. 246.)
But even these great names. speaking for the friends of the Constitution. were not enough to satisfy the Convention on this point of implied power. John Marshall, [MISSING TEXT] to, become Chief Justice of the U. S., h;:1 to like the, [MISSING TEXT] and bear witness. too, [MISSING TEXT] the point. He spoke on the [MISSING TEXT] question, of the power of Congress over the Militia, He said, "Could any man say that this power sea; not retained by the States, as they had not given it away? For, says he, does not a power remain until it is given away"?
"For Continental purposes, Congress may call forth the militia; as to suppress insurrections and repel invasions. But the power given to the States by the people, is not taken away, for the Constitution does not say so. In the Confederation, Congress had this power, but the State Legislatures had it also. The power of Legislating, given them in the Ten Miles Square, is exclusive. AL/, the restraints intended to he Laid on the State Governments, (besides where an exclusive power is expressly given to Congress,) are contained in the 10th Section of the 1st Article. This power, (the Militia Power,) is not included in that section". (8 Ell, Deb. 41g.)
Now, here, Judge Marshall goes this far, at least: that there is nothing in the Constitution from which you can imply any restriction upon the States. The restrictions upon the States are all expressed. We shall see, that when he asks the question, "Does not a power remain until it is given away"? he means to say, until it is expressly "given away".
For, afterwards, in speaking on the Judicial powers delegated by the Constitution, he says: "Has the Government of the U. States power to make Laws on every subject? Does he understand it so? Can they make Laws concerning the mode of transferring property, or contracts, or claims, between citizens of the same State? Can they go beyond the delegated powers? If they were to make a Law not warranted by any of the powers enumerated. it would be considered, by the Judges, as an infringement of the Constitution which they are to guard. They would not consider such a Law as coming under their jurisdiction; they would declare it void". ( I bid. 553.)
John Marshall then told the Convention of Virginia, to induce it to accept the Constitution, that the Constitution meant only this: to give from the States to the General Government, such powers as it "enumerates" — as it counts out to that Government — no more.
Under such assurances, from such quarters. the Convention ratified the Constitution, but they did it in such a way as to show that they understood the Constitution to give the General Government no other powers than such as were expressed in it.
The Convention said, "We, the delegates, c., do declare and make known, that the powers granted under the Constitution, being derived from the people of the United States, [MISSING TEXT] resumed by them [MISSING TEXT] the same shall be perverted to their injury or oppression, and that every power not granted, thereby remains with them and at their will. That, therefore. no right, of any denomination, can be cancelled, abridged, restrained or modified, by the Congress; by the Senate or House of Representatives, acting in any capacity; by the President; or any department, or officer of the United States, except in those INSTENCES in which power is given, by the Constitution, for those purposes, c. With these impressions, c., we do assent to and ratify the Constitution".
Now, the word "instances" means here, specified eases — enumerated cases. This is too plain to admit of a doubt. The Convention so understood it. Madison certainly did. ( Id. 620.)
But the Convention did not stop here. They, at the same time, proposed certain amendments to the Constitution, to put this matter beyond doubt. Among the amendments was one to the effect that each State retains every power which is not delegated. Another, "That those elapses which declare that Congress shall not exercise certain powers, be not interpreted, in any manner whatsoever, to extend the powers of Congress; but that this may be construed either as making exceptions to the specified powers, where this shall be the ease or otherwise, as inserted merely for greater caution".
And the Convention enjoined it upon "Their Representatives in Congress, to exert all their influence and use all reasonable and legal methods, to obtain a ratification of the amendments".
Virginia, therefore, when she agreed to the Constitution, understood it in the sense in which ft was understood by the other States, vis.: as an instrument delegating no powers but those expressed in it, and as one to be construed strictly.