these trades, are unconstitutional and void, so | legislate on the same subject, unless Congress far as the importer is concerned. These taxes exercises the power granted. And when the have been always imposed by some of the power is exercised, the states may yet legislate, states, and their right to derive a revenue from if the whole ground of legislation has not been these sources has never before been questioned. covered by the laws of the United States; proIt may be said, that the right of the importer vided the state law be not repugnant to that of to sell, is a right to sell by wholesale only, and the federal government. Assuming these princinot by auction, or by retail. If, however, the ples as settled, it would be a sufficient answer right exists at all, it cannot be limited to sales to this argument to say, that no law of Conby wholesale. It is said to be incident to the gress gives, or professes to give to the importer, permission to import; and if it be annexed to the right to sell. The revenue laws referred to that permission, then it must be an absolute charge duties in certain cases, where sales may and unconditional right; for where can we find be made. The laws are framed on the assumpthe qualification? If the states are disabled tion that certain foreign goods will be permitfrom imposing a tax on the sales of foreign ted to be sold; but these laws do not give that merchandise, when made by the bale or pack-permission generally, nor point out in what age, why are they not equally unable to impose mode they may be sold. If, therefore, under a tax on the sales of such goods when made by this power to regulate commerce, Congress auction, or retail, or in any other manner? may give the importer a right to sell, yet the The constitution gives no peculiar privilege to right is not given; and until it is given by Conany particular mode of sale; and this court, in gress, the states may regulate and tax [*430 expounding the instrument, will not introduce the sales without violating the constitution of into it new limitations, and new divisions of the United States. power, not implied by its words. In fine, the importer, by the payment of the duties, either acquires the right to sell, as well as the right to introduce the goods, or he acquires the right to bring in merely. In the first case, his right to sell would be beyond the reach of state control, and state regulation. In the second case, the goods would be subject to the laws and authority of the state. It can hardly be held that an importer may sell in any place, and in any manner he pleases; and if he may not, it is because the disposition of the goods is subject to the regulations of the state authorities; and if they are so subject, they are, consequently, liable to such burthens as the state may impose on any particular mode of sale or transfer; and, therefore, liable to the tax in question. But this clause in the constitution does not give to Congress the power contended for. By the constitution of the United States, the power of taxation by the states is restrained, by express words, in certain cases. It has always been supposed that these limitations of state sovereignty, in matters of revenue, so carefully and particularly set down, excluded all inference and implication, and left with the states all the powers of taxation not expressiy denied to them in the restraining section. It is very clear, that the men who framed the constitution, and the people who adopted the constitution, so understood it. The Federalist must be considered as expressing the opinions of the friends of the federal constitution, both in and out of the convention; and in No. 33, and near the conclusion of that numThe cases cited of goods wrecked on our ber, the commentary on the subject of the tax429*] shores can hardly be supposed to bearing power is thus concluded: "The inference on this argument. To import, implies an act of the will, a voluntary introduction of the goods. Besides, in those cases, the question is, are the goods liable to pay duty? not what rights will the payment of the duty procure? And when the questions are so different, it is not perceived how a decision of the one can in any degree affect the other. But, it is insisted, on the other side, that if the law in question be not repugnant to that clause in the constitution which forbids a state to lay a duty on imports, yet it is in violation of that clause which gives Congress the power to regulate commerce with foreign nations. It must be observed that this argument admits, argumenti gratia, that the tax in question is not, either directly or indirectly, a duty on imports. But the plaintiffs in error contend, that although it be not a duty on imports, still the tax in question is forbidden by the constitution of the United States. In other words, they maintain that the tenth section in the constitution of the United States is not the only one which limits the taxing power of the states; and that this power is still further curtailed by the clause which gives Congress the power to regulate commerce. It has been settled by the decisions of this court that the grant of a power to Congress does not extinguish the right of the states to from the whole is, that the individual states would, under the proposed constitution, retain an independent and uncontrollable authority to raise revenue to any extent of which they may stand in need, by every kind of taxation, except duties on imports and exports." And, throughout No. 32 and No. 33 of The Federalist, the same principle is repeatedly asserted as a clear and indisputable one. But, if Congress, under the power to regu late commerce, may authorize the importer to sell, then certain important powers of taxation, besides duties on imports and exports, have been surrendered by the states. For if Congress may give by law to the importer the right to sell, Congress may direct how the sale may be made, or may allow the importer to elect any mode he pleases; and, whenever this shall be done by the general government, the power of the states to regulate such sales is at an end, and, consequently, their power of taxation also. If this argument, then, be sustained by the court, the authority of the states to regulate and to tax auctioneers and retailers is not “an independent and uncontrollable authority," as was supposed by the distinguished writers in The Federalist, but is a mere dependent authority, and liable to the control of Congress, so far as foreign goods are concerned. [*431 Congress, it is said, may give the importer the right to sell. If Congress may do so, then the states cannot tax any mode of sale which Congress may please to permit. Such powers were surely too important and valuable to have been surrendered in this loose and slovenly manner. If they were to have been given up by the states, they would have been given up in express terms, like the duties on imports, and not by vague and uncertain inferences. Besides, if Congress may give the right to sell in any manner, they may also give the right to sell in any place; and the police laws of the different states, made for their safety or health, exist only by the permission of Congress. And again, if Congress may not only prescribe the terms upon which foreign goods may be introduced into the country, but may direct how they shall be sold, and thus exempt the sales from state taxation, why may not Congress, upon the same principle, exempt all foreign goods from taxation by the states? If Congress may exercise exclusive dominion over foreign goods for one purpose, after they have been brought into a state, why may not the same exclusive power be exercised for any other purpose? Reasons of policy might, indeed, make a difference; but we are not now discussing the policy of introducing new provisions into the constitution, but endeavoring to ascertain the meaning of the words used in the instrument. The last argument urged in behalf of the plaintiff in error, is founded on the supposed policy and objects of the constitution, rather than on the interpretation of any words used in the instrument itself. It is said, that if a state may impose the tax in question, it may increase it to any amount, and by that means the states may prevent importations altogether. And, hence it is inferred, that a power capable of being so much abused, was not intended to have been left with the states. Nothing can be more fallacious than to urge the possible abuse of power by the states, for the purpose of proving that the power has been taken away. Such an argument goes to the destruction of all state power. Such a principle of construction would put an end to all state authority; for all power may possibly be abused. 432] The states cannot and *ought not to be deemed more liable than the federal government to abuse the powers confided to them by the people; nor can any supposed and merely possible inconvenience, which might arise from an improper use of state power, furnish a ground for deciding against the existence of the power. We must be continually liable to this inconvenience from the complex character of our government. In the Federalist, No. 32, the rule of construction is thus stated: "It is not a mere possibility of inconvenience in the exercise of powers, but an immediate and constitutional repugnancy, that can, by implication, alienate and extinguish a pre-existing right of sovereignty." The possibility of inconvenience from the improper use of this power by the states, is not, therefore, any argument against the existence of this power. It cannot, by implication, alienate and extinguish the power for which we are contending. But, indeed, it is impossible that the power to lay the tax in question can lead to any inconvenience, or can be used to embarrass the regulations, or lessen the revenue of the federal government. If the tax on wholesale dealers should be so heavy as to prevent importations, the people of the state will be the principal sufferers. If it enchances the price of imported goods, the burthen is at least as heavy on the people of the state as it is on the citizens of other states, and this furnishes abundant security that no such tax will ever be vexatiously laid. The people of a state cannot be justly suspected of imposing heavy burdens upon themselves, for the purpose of thwarting or embarrassing the general government. If, indeed, the people of a state could be guilty of such folly, they might, by bounties and other facilities to manufactures in their own state, effectually prevent the importation of foreign goods. Nobody would deny that the states possess this power; but nobody suspects them of being disposed to abuse it. There is, indeed, no real danger of serious inconvenience from these conflicting powers. The good sense and good feelings of the peo ple will always apply the remedy; and we may safely confide, that the state governments, and the general government, will never embark in the unprofitable contest of trying which shall do each other the most harm. But *if [*433 such a state of things should ever take place, it would matter very little how the boundaries of power had been marked out by judicial decision. The Union cannot be preserved by the mere strength and power of the federal government. It is dissolved as soon as it shall forfeit the affection and confidence of the states. The Attorney-General, for the plaintiffs in error, in reply, stated the question to be, whether a state law, which rendered it criminal to import and sell foreign goods, without the permission of the state, which permission was only to be obtained by paying a tax to the state, was repugnant to the constitution, laws, and treaties of the Union. If the state of Maryland had the power to lay such a restraint on the importation and sale of foreign goods, every other state must have the same power; and the consequence would be, that this power of taxation would directly interfere, both with the power of regulating commerce, and with the taxing power of Congress. The quantum of tax imposed by the state could make no difference. The same principle would apply, as in the attempt of the same state to tax the Bank of the United States, where the court held, that a power to tax, was a power to tax limited only by the pleasure of the state; and that it was, therefore, a power to destroy.' In the present case, the power was denied upon two grounds; first, because the power exerted by the law in question is that of regulating commerce with foreign nations, and among the several states, which the court has determined to be exclusively vested in Congress. Second, because it was that of laying an impost, or duty on imports, without the consent of Congress. In order to determine whether the present law interfered with the exercise of the power of regulating commerce, it was only necessary to see whether it undertook to prescribe the terms on which commerce may be carried on 1. M'Culloch v. Maryland, 4 Wheat. Rep. 316. 2.-Gibbons v. Ogden, 9 Wheat. Rep. 1. on exports, although both the states and Congress are expressly forbidden in the constitution from laying such a duty; and the whole power of regulating the commerce, both of exports and imports, is exclusively vested in Congress, By the joint exercise of these two usurped Or it tercourse with other states, and with foreign 2 434*] with foreign nations, and among the states. If it were a power to prescribe those terms, it was a power to prescribe the whole terms. After Congress, in the exercise of its exclusive power, has prescribed certain terms, it is incompetent for the states to add other terms. Could there be any doubt that the ex-powers, the state may establish a total non-inclusive power of regulating foreign commerce included that of prescribing to all the citizens of the Union the conditions, and the whole conditions, on which they shall be permitted to bring into the United States, for sale or consumption, the productions of foreign countries? This power does not stop with the permission to bring them in; for if the states may prohibit their sale, or restrain, or burthen it, in any mode, they may, in effect, prohibit their importation. If they may prevent their sale, they may prohibit their barter or exchange, or use and consumption in the country, in any and every mode; and thus effectually defeat the beneficial exercise of the permission to import. The states might even confiscate the goods, or order them to be burnt and destroyed after they were landed; and this would no more interfere with the right of importation, according to the opposite argument, than the law now in ques- | tion. And, it was asked whether the sagacious statesmen who framed the constitution meant to confer upon Congress a power so idle and illusory. They looked to the exercise of this power of regulating commerce as a great source of national wealth and aggrandizement. They looked to it as a great means of developing the agricultural and manufacturing resources of the country, and its general industry; as an instrument by which the nation should be enriched at home, and rendered capable of countervailing the commercial regulations of foreign This is a writ of error to a judgment rendered and rival nations. But if the power of regu- in the Court of Appeals of Maryland, affirming lating commerce ceases on the landing of the a judgment of the City Court of Baltimore, on goods, and the whole subject is then delivered an indictment found in that court against the over to the discretion of the respective states, plaintiffs in error, for violating an act of the with their various partial and discordant views legislature of Maryland. The indictment was of policy, its exclusive exercise by Congress founded on the second section of that act, will be utterly vain and useless. So that the which is in these words: "And be it enacted, very existence of that commerce, a power of that all importers of foreign articles or comregulating and preserving which is so studious-modities, of dry goods, wares, or mercdandise, 435*] ly conferred on Congress, *is at last by bale or package, or of wine, rum, brandy. made to depend upon the caprice and pleasure whiskey and other distilled spirituous liquors, of the states. What signifies the power of regu- &c., and other persons selling the same by lation, if the states may destroy the very sub-wholesale, bale or package, hogshead, barrel, stance of the thing to be regulated? Uniformity, or permanency of regulation, with a view to any purpose of policy, in regard to the agricultural, manufacturing, or commercial interests of the nation, is, of course, as much out of the question as if there were no Union, or as if it were still infected with all the debility of the former confederation. The same state power, exercised upon short-sighted and narrow views, might be exerted so as to defeat the other branch of the power-that of regulating commerce among the states. The free intercommunication which now prevails between the states, may be effectually checked, by requiring a similar license to import into a particular state the productions of other states. So, also, what the state may do as to imports, it may do as to exports. It may require a license from the exporting merchant, and thus, in effect, lay a duty 1.-The Federalist, No. 11. Mr. Chief Justice MARSHALL delivered the opinion of the court: or tierce, shall, before they are authorized to sell, take out a license, as by the original act is directed, for which they shall pay fifty dollars; and in case of neglect or refusal to take out such license, shall be subject to the same penalties and forfeitures as are prescribed by the orig inal act to which this is a supplement." The indictment charges the plaintiffs in error with having imported and sold one package of foreign dry goods without having license to do so. A judgment was rendered against them on demurrer for the penalty which the act prescribes for the offense; and that judgment is now before this court. The cause depends entirely on the question, whether the legislature of a state can constitutionally require the importer of foreign articles to take out a license from the state, before he shall be permitted to sell a bale or package so imported. 2.-The Federalist, No. 12. It has been truly said, that the presumption is in favor of every legislative act, and that the whole burthen of proof lies on him who denies its constitutionality. The plaintiffs in error 437*] *take the burthen upon themselves, and insist that the act under consideration is repugnant to two provisions in the constitution of the United States: 1. To that which declares that "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.' 2. To that which declares that Congress shall have power to regulate commerce with foreign nations, and among the several states, and with the Indian tribes. 1. The first inqury is into the extent of the prohibition upon states "to lay any imposts or duties on imports or exports." The counsel for the state of Maryland would confine this prohibition to the laws imposing duties on the act of importation or exportation. The counsel for the plaintiffs in error give them a much wider scope. In performing the delicate and important duty of constructing clauses in the constitution of our country, which involve conflicting powers of the government of the Union, and of the respective states, it is proper to take a view of the literal meaning of the words to be expound 1, of their connection with other words, and of the general objects to be accomplished by the prohibitory clause, or by the grant of power. | frequently, if not always, paid for service performed on land, while the article is in the bosom of the country. Yet this tax is an exception to the prohibition on the states to lay duties on imports or exports. The exception was made because the tax would otherwise have been within the prohibition. If it be a rule of interpretation to which all assent, that the exception of a particular thing from general words, proves that, in the opinion of the law-giver, the thing excepted would be within the general clause had the exception not been made, we know no reason why this general rule should not be as applicable to the constitution as to other instruments. If it be applicable, then this exception in favor of duties for the support of inspection laws, goes far in proving that the framers of the constitution classed taxes of a similar character with those imposed for the purposes of inspection, with duties on imports and exports, and supposed them to be prohibited. If we quit this narrow view of the subject, and passing from the literal interpretation of the words, look to the objects of the prohibition, we find no reason for withdrawing the act under consideration from its operation. From the vast inequality between the differ ent states of the confederacy, as to commercial advantages, few subjects were viewed with deeper interest, or excited more irritation, than the manner in which the several states exercised, or seemed disposed to exercise, the power of laying duties on imports. From motives which were deemed sufficient by *the [*439 statesmen of that day, the general power of taxation, indispensably necessary as it was and jealous as the states were of any encroachment on it, was so far abridged as to forbid them to touch imports or exports, with the single exception which has been noticed. Why are they restrained from imposing these duties? Plainly because, in the general opinion, the interest of all would be best promoted by placing that whole subject under the control of Congress. Whether the prohibition to "lay imposts, or duties on imports or exports," proceeded from an apprehension that the power might be so exercised as to disturb that equality among the states which was generally advan What, then, is the meaning of the words, "imposts, or duties on imports or exports?" An impost, or duty on imports, is a custom or a tax levied on articles brought into a country, and is most usually secured before the importer is allowed to exercise his rights of own ership over them, because evasions of the law can be prevented more certainly by executing it while the articles are in its custody. It would not, however, be less an impost or duty on the articles, if it were to be levied on them after they were landed. The policy and consequent practice of levying or securing the duty before, or on entering the port, does not limit the power to that state of things, nor, consequently, the prohibition, unless the true meaning of the clause so confines it. What, then, are "im-tageous, or that harmony between them which ports?" The lexicons inform us, they are it was desirable to preserve, or to maintain unthings imported." If we appeal to usage for impaired our commercial connections with forthe meaning of the word, we shall receive the eign nations, or to confer this source of revenue same answer. They are the articles themselves on the government of the Union, or whatever which are brought into the country. "A duty other motive might have induced the prohibi438*] on imports," then, is not merely a duty tion, it is plain that the object would be as on the act of importation, but is a duty on the completely defeated by a power to tax the thing imported. It is not, taken in its literal article in the hands of the importer the instant sense, confined to a duty levied while the article it was landed as by a power to tax it while is entering the country, but extends to a duty entering the port. There is no difference, in levied after it has entered the country. The effect, between a power to prohibit the sale of succeeding words of the sentence which an article and a power to prohibit its introduclimit the prohibition, show the extent in which tion into the country. The one would be a it was understood. The limitation is, "except necessary consequence of the other. No goods what may be absolutely necessary for executing would be imported if none could be sold. No its inspection laws." Now, the inspection laws, object of any description can be accomplished so far as they act upon articles for exportation, by laying a duty on importation, which may are generally executed on land, before the arti- not be accomplished with equal certainty by laycle is put on board the vessel; so far as they acting a duty on the thing imported in the hands upon importations, they are generally executed upon articles which are landed. The tax or duty of inspection, then, is a tax which is of the importer. It is obvious that the same power which imposes a light duty can impose a very heavy one, one which amounts to a pro hibition. Questions of power do not depend on the degree to which it may be exercised. If it may be exercised at all, it must be exercised at the will of those in whose hands it is placed. If the tax may be levied in this form by a state, it may be levied to an extent which will defeat the revenue by impost, so far as it is drawn from importations into the particular state. We are told, that such wild and irrational abuse of power is not to be apprehended, and is not to be taken into view when discuss ing its existence. All power may be abused; and if the fear of its abuse is to constitute an 440*] argument against its *existence, it might be urged against the existence of that which is universally acknowledged, and which is indispensable to the general safety. The states will never be so mad as to destroy their own commerce, or even to lessen it. We do not dissent from these general propositions. We do not suppose any state would act so unwisely. But we do not place the question on that ground. when the prohibition ceases, and the power of the state to tax commences. It may be conceded that the words of the prohibition ought not to be pressed to their utmost extent; that in our complex system, the object of the powers conferred on the government of the Union, and the nature of the often conflicting powers which remain in the states, must always be taken into view, and may aid in expounding the words of any particular clause. But, while we admit that sound principles of construction ought to restrain all courts from carrying the words of the prohibition beyond the object the constitution is intended to secure, 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 of time is the instant that the articles enter the country. It is, we think, obvious, that this construction would defeat the prohibition. The constitutional prohibition on the states to lay a duty on imports—a prohibition which a These arguments apply with precisely the vast majority of them must feel an interest in same force against the whole prohibition. It preserving-may certainly come in conflict with might, with the same reason be said, that no their acknowledged power to tax persons and state would be so blind to its own interests as property within their territory. The power, to lay duties on importation which would either and the restriction on it, though quite distinprohibit or diminish its trade. Yet the framers guishable when they do not approach each othof our constitution have thought this a power er, may yet, like the intervening colors between which no state ought to exercise. Conceding, to white and black, approach so nearly as to perthe full extent which is required, that every plex the understanding, as colors perplex the state would, in its legislation on this subject, vision in marking the distinction between provide judiciously for its own interest, it can- them. Yet the distinction exists, and must be not be conceded that each would respect the marked as the cases arise. Till they do arise, interest of others. A duty on imports is a tax it might be premature to state any rule as being on the article, which is paid by the consumer. universal in its application. It is sufficient for The great importing states would thus levy a the present to say, generally, that when the tax on the non-importing states, which would importer has so acted upon the thing imported not be less a tax because their interest would that it has become incorporated and mixed up afford ample security against its ever being so with the mass of property in the country, it heavy as to expel commerce from their ports. has, *perhaps, lost its distinctive char- [*442 This would necessarily produce countervail-acter as an import, and has become subject to ing measures on the part of those states whose situation was less favorable to importation. For this, among other reasons, the whole power of laying duties on imports was, with a single and slight exception, taken from the states. When we are inquiring whether a particular act is within this prohibition, the question is not, whether the state may so legislate as to hurt itself, but whether the act is within the words and mischief of the prohibitory clause. It has already been shown that a tax on the article in the hands of the importer is within its words; and we think it too clear for controversy, that the same tax is within its mischief. We think it unquestionable, that such a tax has precisely the same tendency to enhance the price of the article as if imposed upon it while entering the port. the taxing power of the state; but while remaining the property of the importer, in his warehouse, in the original form or package in which it was imported, a tax upon it is too plainly a duty on imports to escape the prohibition in the constitution. The counsel for the plaintiffs in error contend that the importer purchases, by payment of the duty to the United States, a right to dispose of his merchandise, as well as to bring it into the country; and certainly the argument is supported by strong reason, as well as by the practice of nations, including our own. The object of importation is sale; it constitutes the motive for paying the duties; and if the United States possess the power of conferring the right to sell, as the consideration for which the duty is paid, every principle of fair dealing requires The counsel for the state of Maryland insist, that they should be understood to confer it. with great reason, that if the words of the prohi- The practice of the most_commercial nations bition be taken in their utmost latitute, they will conforms to this idea. Duties, according to 441*] abridge the power of taxation, which that practice, are charged on those articles only all admit to be essential to the states, to an ex- which are intended for sale or consumption in tent which has never yet been suspected, and the country. Thus, sea stores. goods imported will deprive them of resources which are neces- and re-exported in the same vessel, goods landsary to supply revenue, and which they haveed and carried over land for the purpose of heretofore been admitted to possess. These words must therefore be construed with some limitation; and, if this be admitted, they insist, that entering the country is the point of time being re-exported from some other port, goods forced in by stress of weather, and landed, but not for sale, are exempted from the payment of duties. The whole course of legislation on |