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sale of it, and sometimes upon the manufacture of it. Thus, a tax, levied upon goods imported from a foreign country, is generally called an "impost" duty; and a tax, levied upon goods manufactured or sold in a country, is called an excise" duty. The meanings of these words, therefore, often run into each other; and all of them are used in the Constitution, to avoid any ambiguity, as to any one of them being used in a general sense, or in a restricted sense, which might involve endless doubts as to the true extent of the constitutional power.
§ 157. The power of taxation is not, however, unlimited in its character. The taxes levied must be (as we have seen) either to pay the public debts, or to provide for the common defence and general welfare of the United States. They cannot be levied solely for foreign purposes, or in aid of foreign nations, or for purposes not national in their objects or character. In the next place, all direct taxes (as we have also seen) are to be apportioned among the several States, in the same manner as Representatives, that is, according to the numbers of the population, to be ascertained in the particular mode pointed out in the Constitution. There is another clause of the Constitution, on the same subject, which declares, "That no capitation, or other direct tax, shall be laid, unless in proportion to the census, or enumeration, herein before directed to be taken." There do not seem to be any other cases, in which a direct tax can be laid accord. ing to the sense of the Constitution, except by a direct tax on land or other real estate, or a capitation or poll tax; for no other taxes seem capable of an apportionment among the States. All other taxes, that is, all "duties, imposts, and excises," are required to be uniform throughout the United States. The reason of the latter rule, is, to prevent Congress from giving any undue preference to the pursuits or interests of one State over those of any other. It might otherwise happen, that the agriculture, commerce, or manufactures of one State might be built up on the ruins of the interests of another; and, the combination of a few States in Congress might secure a monopoly of certain branches of trade and busi ness exclusively to themselves.
§ 158. And further, to enforce this uniformity, and to preserve the equal rights of all the States, it is declared, in a subsequent clause of the Constitution, that "No tax or duty shall be laid on articles exported from any State No preference shall be given, by any regulation of commerce or revenue, to the ports of one State over those of another; nor shall vessels, bound to or from one State, be obliged to enter, clear, or pay duties in another."
§ 159. The obvious object of these provisions is, to prevent any possibility of applying the power to lay taxes, or regulate commerce, injuriously to the interests of any one State, so as to favor or aid another. If Congress were allowed to lay a duty on exports from any one State, it might unreasonably injure, or even destroy, the staple productions, or common articles of that State. The in equality of such a tax would be extreme. In some of the States, the whole of their means result from agricultural exports. In others, a great portion is derived from other sources; from external fisheries; from freights; and from the profits of commerce in its largest extent. The burden of such a tax would, of course, be very unequally distributed. The power is, therefore, wholly taken away to intermeddle with the subject of exports. On the other hand, preferences might be given to the ports of one State by regulations, either of commerce or of revenue, which might confer on them local facilities or privileges in regard to commerce, or to revenue. And such preferences might be equally fatal, if indirectly given under the milder form of requiring an entry, clearance, or payment of duties in the ports of any State, other than the ports of the State, to or from which the vessel was bound. The last clause, therefore, does not prohibit Congress from requiring an entry or clearance, or payment of duties at the customhouse on importations in any port of a State, to or from which the vessel is bound; but cuts off the right to require such acts to be done in other States, to which the vessel is not bound. In other words, it cuts off the power to require that circuity of voyage, which, under the British colonial system, was employed to interrupt the American commerce before the Revolution. No American
vessel could then trade with Europe, unless through a cu cuitous voyage to and from a British port.
§ 160. But, as the power of taxation is not exclusive ly vested in the National Government, but may also be concurrently exercised by the State Governments, it became essential, in order fully to effectuate the same general purposes, and to prevent any State from securing undue preferences and monopolies in its own favor, to lay some restraints upon the exercise of this power by the States. Accordingly another clause in the Constitution declares," 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 and exports, shall be for the use of the treasury of the United States; and all such laws shall be subject to the revision of Congress No State shall, without the consent of Congress, lay any tonnage duty.' A petty warfare of regulation among the States is thus prevented, which might otherwise rouse resentments, and create dissensions, dangerous to the peace and harmony of the Union. The exceptions in favor of inspection laws, to a limited extent, is for the purpose of enabling each State to improve the quality of articles, produced by the labor and industry of its own inhabitants; and thus to fit them better for exportation, as well as for domestic use. Yet, even here, the superintending power of Congress is reserved, lest, under color of such laws, attempts should be made to injure the interests of other States. The net produce of all such duties and imposts is to be for the use of the National treasury; and the laws themselves, by which they are imposed, are subject to the revision of Congress. Thus, the temptations on the part of any State to levy heavy inspection duties are ma terially diminished, and an effectual remedy is provided to meet any intentional, or accidental excess. Having thus brought together all the various, but scattered articles of the Constitution, on the subject of taxation, the subject may be dismissen with the single remark, that as no power is more likely, in its abuse, to be detrimental to the public
welfare, so no one is guarded with more care, and adjusted with more anxious deference to local and sectional interests.
§ 161. Notwithstanding, however, all the solicitude manifested by the Constitution, on this subject, inasmuch as the power of taxation is concurrent in the National and State Governments, it is obvious, that many nice and delicate questions must perpetually arise (as indeed some have already arisen) as to the time and boundaries of the power and rights of each government. For, however true it may be, that in a direct conflict between the constitutional authority of the Union and that of a State, the former must be deemed paramount and superior in its obligatory force; yet the question when, and how far, such a conflict does in fact exist, must often involve many diffi cult and embarrassing inquiries, which do not admit of any universal solution.
Power to Borrow Money, and Regulate Commerce.
§ 162. THE next power of Congress is, "to borrow money on the credit of the United States." This power, also, seems indispensable to the sovereignty and existence of the National Government; for otherwise, in times of great public dangers, or severe public calamities, it might be impossible to provide, adequately, for the public exigencies. In times of peace, it may not, ordinarily, be necessary for the expenditures of a nation to exceed its revenues. But the experience of all nations must convince us, that, in times of war, the burdens and expenses of a single year may more than equal the ordinary revenue of ten years. And, even in times of peace, there are occasions, in which loans may be the most facile, convenient, and economical means of supplying any extraordinary expenditure. The experience of the United States, has already shown the importance of the power, both in peace
and in war. Without this resource, neither the war of Independence, nor the more recent war with Great Brit ain could have been successfully carried on, or terminated. And the purchase of Louisiana was by the same means promptly provided for, without being felt by the nation, in its ordinary fiscal concerns.
§ 163. The next power of Congress is, "to regulate commerce with foreign nations, and among the several States, and with the Indian tribes." The want of this power to regulate commerce was, as has been already suggested, a leading defect of the Confederation. In the different States, the most opposite and conflicting regulations existed; each pursued its own real or supposed local interests; each was jealous of the rivalry of its neighbors; and each was successively driven to retaliatory measures, in order to satisfy public clamor, or to alleviate private distress. In the end, however, all their measures became utterly nugatory, or mischievous, engendering mutual hostilities, and prostrating all their commerce at the feet of foreign nations. It is hardly possible to exaggerate the oppressed and degraded state of domestic commerce, manufactures, and agriculture, at the time of the adoption of the Constitution. Our ships were almost driven from the ocean; our work-shops were nearly deserted; our mechanics were in a starving condition; and our agriculture was sunk to the lowest ebb. These were the natural results of the inability of the General Government to regulate commerce, so as to prevent the injurious monopolies and exclusions of foreign nations, and the conflicting, and often ruinous regulations of the different States. ties were laid by one State, they were rendered ineffectual by the opposite policy of another. If one State gave a preference to its own ships or commerce, it was counteracted by another. If one State endeavored to foster its own manufactures by any measures of protection, that made it an object of jealousy to others; and brought upon it the severe retaliation of foreign governments. If one State was peculiarly favored in its agricultural products, that constituted an inducement with others to load them with some restrictions, which should redress the inequality