legislator, and on the influence of the constituents over their representative, to guard them against its abuse.1 tice. No Some things there are, however, which, upon fundamen- € 210. tal principles of justice, ought to be wholly exempt from tax upon justaxation, both state and federal. Such are all writs which are issuable from the courts as instruments of justice. Taxes on litigation are means of discouraging it, which some approve; but it ought not to be overlooked, that they are means of preventing the pursuit of justice; they are also means of denying it; especially to those who are most in need of it; and to deny it to any, or to hinder the pursuit, is not in accordance with the spirit of our constitutions. To tax the necessary instruments of justice, as though they were property, was never the policy of the states; but a part of the recent congressional policy of invading the rights of the states. To the honor of our people be it remembered, that that policy has been successfully resisted, and, we hope, forever ended.' It may even be doubted that such instruments could be taxed by the state legislatures, without an infraction of their Bills of Rights. If the right to tax them exists, it may be carried so far as to amount to an absolute denial of justice. The right to tax implies the right to destroy.' It may certainly be affirmed, as an inviolable principle of our political system, that no constitutional power can exist in congress, or in any of the branches of the federal government, to control or hinder the process, methods or means of administering justice in the courts of a state. As well may congress usurp the control of the whole internal government of a state. The powers of state officials, are the powers of 1 Marshall, C. J. in McCulloch v. The State of Maryland, 4 Wheat. 316, 428. Congress may tax the unrepresented District of Columbia. Loughborough v. Blake, 5 Wheat. 317. The power extends equally to all places within the jurisdiction of the government. 1 Kent's Com. * 256. 2 The imposition of stamp duty on legal process is unconstitutional. Fifield v. Close, 2 Jennison, (15 Michigan), 505. See Warren v. Paul, 22 Indiana, 276. 3 See FORM of State Constitution, at No. 22, ante, p. 84. taxation. the sovereign, that is, of 'the people' or body of electors composing the state. The process of the courts, the entire administration of justice, is in the name, and by the authority, of this absolute sovereign. A judge of any state court, therefore, who should permit the process of his court to be taxed, or the administration of justice therein to be controlled or affected, by any authority other than that of the state which invests him with the judicial office, would be guilty of a gross violation of his trust-would be guilty of treason against his sovereign.1 ? 211. Re- (3) What, finally, is the relation of federal and state taxlation of fed- ation? The clauses of the federal constitution directly eral and state affecting the power of state taxation, are the following: 'No state shall, without the consent of congress, lay any imposts or duties on imports or exports, except what may be absolutely necessary for executing its inspection laws; and the net produce of all duties and imposts, laid by any state on imports or exports, shall be for the use of the treasury of the United States; and all such laws shall be subject to the revision and control of congress. No state shall, without the consent of congress, lay any duty of tonnage." And 'No tax or duty shall be laid on articles exported from any state." This last clause applies equally to both the federal and state legislatures. Hence results. an exclusive power in congress to lay duties on imports: but neither congress nor the state legislatures can lay any tax or duty on exports. If 'any duty of tonnage,' or 'duties on imports,' be laid by a state, the laws of the state concerning the same must be subject to the revision and control, and receive the assent of, congress. But the power of imposing taxes on all articles other than exports 1 The efforts of Pomeroy (Const. Law, ?? 291–293) to defend the policy of congress in taxing 'papers used in the judicial proceedings of state courts,' all proceed upon the fallacy that the evidences of right, and the means of its vindication, are themselves property. This is proved to be the truth by the blindness that sees not the difference. 204, ante. and imports, is manifestly a concurrent and co-equal authority in the federal and state legislatures. The individual states should doubtless possess an independent and uncontrollable authority to raise their own revenues for the supply of their own wants. And with the sole exception of duties on imports and exports, they retain that authority under the constitution, in the most absolute and unqualified sense; and an attempt on the part of the federal government to abridge them in the exercise of it, would be a violent assumption of power, unwarranted by any article or clause of its constitution. There is plainly no expression in the grant of the taxing power to congress, which makes that power exclusive. There is no independent clause or sentence which prohibits the states from exercising it. So far is this from being the case, that a plain and conclusive argument to the contrary is deducible from the restraint laid upon the states in relation to duties on imports and exports. This restriction implies an admission, that if it were not inserted, the states would possess the power it excludes; and it implies a further admission, that as to all other taxes, the authority of the states remains undiminished. It amounts to what lawyers call a negative pregnant; there is a negation of one thing, and an affirmance of another; a negation of the authority of the states to impose taxes on imports and exports, and an affirmance of their authority to impose them on all other articles. It would be mere sophistry to argue that it was meant to exclude them absolutely from the imposition of taxes of the former kind, and to leave them at liberty to lay others subject to the control of congress." 1 The Federalist, No. 32, p. 140. 2 Id. 140. Hamilton. Id. p. 141. Hamilton. Those who maintain the imperial theory, constantly refer to the supremacy clause, upon this as upon other subjects. In relation to which, Hamilton says: "If individuals enter into a state of society, the laws of that society must be the supreme regulator of their conduct. If a number of political societies enter into a larger political society, the laws which the latter may enact, pursuant to the powers entrusted to it by the constitution, must necessarily be supreme over those societies, and the individuals of whom they are composed. eral 212. Fed It has been conceded, however, that from the operation instru- of this general authority remaining in the states, over all ments not tax- other matters of legitimate taxation, the necessary inable by states. struments and means of carrying on the government established by the general constitution, must, from the necessity of the case, be considered exempt. For the right to tax, implies the right to destroy." 6 It is not denied that the power of taxation is to be concurrently exercised by the federal and state governments. The power of state taxation is to be measured by the extent of state sovereignty; it extends to all subjects of state jurisdiction, to everything which exists or is introduced by state authority; but it does not extend to those means which are employed by congress to carry into execution its constitutional powers. 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 federal government, and all those means which are given for the purpose of carrying those powers into execution. This principle relieves from clash But it will not follow from this doctrine, that acts of the larger society, which are not pursuant to its constitutional powers, but which are invasions of the residuary authorities of the smaller societies, will become the supreme law of the land. These will be merely acts of usurpation, and will deserve to be treated as such. . . Though a law, therefore, laying a tax for the use of the United States would be 1 We applied this argument to the taxation of state instruments by congress. Consistency requires that we admit its validity here. It is here only, however, that Pomeroy and others, advocates of the Imperial scheme, admit its application. Consistency is no part of their doctrine. 2 McCulloch v. The State of Maryland, 4 Wheat. 316. ing sovereignty; from interfering powers; from a repug- If the Thus a bank of the United States, though having its branches within the jurisdictions of the states, is not liable to state taxation.2 Nor can a state tax be laid upon stock created and issued for loans made to the United States; since that would be taxing a measure or means of carrying on the federal 1 McCulloch v. Maryland, 4 Wheat. 316; 1 Kent's Com. * 426. 2 McCulloch v. State of Maryland, 4 Wheat. 316; Osborn v. Bank of the U. S., 9 Wheat. 738. In the first of these cases, the court was careful to declare, that its decision was to be received with the qualification, that the states were not deprived of any resources of taxation which they originally possessed; 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. In the last, it was admitted, that if the bank was a mere private corporation, engaged in its own business and with its own views, and that its great end and principal object were private trade and private profit, it would be subject to the taxing power of the state, just as any individual would be. But such 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, an instrument necessary and proper for carrying into effect the powers vested by the constitution in the government of the United States. ¿ 213. |