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before us, stands in the position of an agent who has assets placed in his hands, first to pay debts, and then to distribute according to a fixed scheme. This undoubtedly gives large discretionary powers to the agent so entrusted. It would not authorize him, however, to destroy any of the property placed in his hands for such distribution. It must be remembered that a citizen of the United States is, apart from the question of revenue, as much entitled to buy an article produced abroad as he is to buy an article produced at home. He holds both rights subject to the superior right of the government to come in and require him to pay, in case of a purchase, a pro rata part of the price as a contribution to the revenue of the state. But because the government has the right to exact this tax, this does not give it the right to prevent the thing from which the revenue is raised from being sold at all. If the government, in other words, has the right, because it can tax foreign articles, of preventing foreign articles from being sold, it has the right, because it can tax domestic articles, of <preventing domestic articles from being sold. If, for instance, it can say "I can tax soap made abroad, therefore I can exclude such soap from New York," it can also say, "I can tax soap made in this country, therefore I can stop the sale of such soap everywhere in the land." If, however, it cannot stop the sale of home goods under the guise of taxation, neither can it stop the sale of foreign goods under the guise of taxation. Nor can the plea of taxation be set up to justify any legislation the object of which is to destroy revenue. A power to an agent, for instance, to run a ship on any voyages he may deem best, does not authorize him to destroy the ship: a power to an agent to lease a house to any parties he may approve, does not authorize him to burn the house. The same observations. may be made on the vindication of prohibition on the ground of regulating commerce. To destroy is not to regulate; and if the power to regulate commerce with foreign states authorizes the exclusion of foreign articles from the market, the power to regulate commerce between the states would authorize the exclusion of domestic articles from the market. On two grounds only can such prohibitions be defended. One is police or quarantine; the other is the exercise of the war power of

the government, by way of embargo, or by way of the exclusion of articles contraband of war.

in borrowCongress, ing money,

may give

416. The next clause of the first article of the constitution gives congress the power to borrow money on the credit of the United States. This power includes the power to give proper securities, in the shape of bonds or notes for the payment of loans; and such securities, as we have seen, are exempt from state taxation. Whether such securities, when not redeemable in cash, can be made legal tenders, will be hereafter discussed.2

any proper

securities.

Borrowing

implies the right to through a

borrow

bank.

§ 417. As the function of borrowing can only be exercised through agencies, it is within the discretion of congress to select as borrowing agents any officers it may deem proper to effect this purpose. It is, therefore, within the power of congress to charter a bank to whom is committed the function of borrowing money for the support of the government and of negotiating government bonds, and also to employ for this purpose banks already in existence. It is on this reasoning that the constitutionality of statutes employing national banks as the agents for the distribution of bonds may be sustained. How far this power involves the power to charter a national bank as a discounting agency, has been gravely questioned. A power to borrow, so far from including, is, by its enumeration, exclusive of a power to lend; and the distinction is material, since, while a government, in order to equalize its expenditures, is compelled, in periods of extraordinary outlay, to borrow, there is no reason why it should enter the market, either in person or through an agent, as a lender. It may be that in certain great crises of government a bank is the only agent by whom money can be borrowed; and it may be that without the power of discounting, a bank cannot exist. On this ground the approval, by Washington and Madison, of charters of the Bank of the United States may be explained; and the affir

1 Supra, § 408; Bank v. Supervisors, 7 Wall. 26.

2 Infra, §§ 443 et seq.

3 McCulloch v. Maryland, 4 Wheat. 316.

mation of the constitutionality of the charter by the supreme court of the United States followed, for the reason that the question, being one as to the selection of means to execute a power expressly given by the constitution, was one of political expediency, of which congress is the judge.

States may

tax

generally.

§ 417a. The power of a state over its domiciled citizens enables it to tax debts due them from persons in other states, subject to the restrictions in the Federal constitution; and as a state may impose any taxes on its domiciled citizens which its constitution permits, it may tax the registered bonds of other states held by such citizens. Some of the restrictions on the power of the state in this relation have been already noticed. But a state, as we have seen, cannot tax Federal assets or Federal functions." Nor can a state, under the fourteenth amendment, impose taxes unequally bearing on corporations or individuals.

Power

meant to

dom of trade be

tween the states.

V. REGULATION OF COMMERCE.

§ 418. We have next to consider the following clause: "Congress shall have power. . . . to regulate commerce with foreign nations, and among the several states, secure free and with the Indian tribes." To this the following qualification is attached: "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 to another." No clause in the constitution is more distinctively produced by national conditions than this. The lines between the states were in most cases purely arbitrary. Free trade between the states was what the people of the states needed, and, as will presently be more fully seen, demanded. Natural conditions required that there should be interstate free trade; but local interests, striving to shut out competition, had, after the Revolution, induced the state legislatures to impose restrictions by which inter

1 Kirkland v. Hotchkiss, 100 U. S. 491.

592.

Bonaparte v. Tax Court, 104 U. S.

Supra, §§ 409-10. As to constituents of domicil, see supra, §§ 254 et seq. Supra, § 409.

6 Infra, § 588.

state trade ceased to be free. Tariffs and harbor dues were followed by retaliations and general revenue impositions, the results of which were not only to break up interstate trade, but to engender animosities which might have resulted in war. We cannot study the debates in the constitutional convention without seeing that some of its members were students of political economy, and were aware of the importance of free trade among states occupying such a vast extent of territory with such varied productions as the United States. Nor can we study colonial history without seeing that however arbitrary were the restrictions placed on the colonies by Great Britain so far as concerned itself and the West Indies, they had, in colonial days, free business intercourse among themselves. If there had been alienations, these had been much softened by the Revolutionary struggle; if particular local interests sought a monopoly of some particular local market, this tendency was insignificant when compared with the desire of the people of the several states as a body for a free interchange of productions with each other. In fact, despite the arbitrary and capricious impositions of the legislatures, this freedom of intercourse still largely remained; and the feeling was universal that it should be formulated in the constitution. This fact, in connection with those noticed in the next section, must be taken into consideration in construing the clause now before us.1

419. The territory embraced by the United States, it should be remembered in this relation, is marked at once by diversity and unity. It was bounded, when the constitu

1 The argument is thus put in a "note" given in Franklin's Works as published in London, July 7, 1767:

"Suppose a country, X., with three manufactures, as cloth, silk, iron, supplying three other countries, A., B., C., but is desirous of increasing the vent and raising the price of cloth in favor of her own clothiers. In order to do this she forbids the importation of foreign cloth from A. A. in return forbids silks from X. Then the silk traders

complain of a decay in trade. And X. to content them forbids silks from B. B. in return forbids iron ware from X. Then the iron-workers complain of decay, and X. forbids the importation of iron from C. C. in return forbids cloth from X. What is got by all these prohibitions? Answer. All four find their common stock of the enjoyments and conveniences of life diminished. B. F." Franklin's Works, ii. 366.

Diversity of climate, of soil, and of population, in the United

States de

freedom.

tion was framed, to the east by the Atlantic, and on its northern shores dwelt not only fishermen and sailors as intrepid and industrious as the world ever knew, but merchants of singular enterprise, and ship builders who were able to make the best use of the lumber with which the territory mand such abounded. In the Middle States, and in Maryland and Virginia, the soil was sufficiently rich and extended to provide food for the whole seaboard; while in Pennsylvania were already discovered traces of the iron and coal with which her hills were in many districts enriched. The soil of Maryland and Virginia gave tobacco enough to satisfy the demand which was making it a prominent business staple. In the south, rice, which white labor could not produce, was freely obtained by the labor of negroes; and distinctive fruits and vegetables, which the Middle States could either not grow at all, or grew tardily and scantily, were readily raised. The west was but imperfectly explored; but it was known that there was to be found a vast territory where men of enterprising temper could find not only employment but wealth. There was diversity in soil, in climate, in occupa. tion, and eminently in modes of labor. Yet with all this there was unity. The country, vast as it was, was insular. The Saint Lawrence, an estuary of great width for a long portion of its course, a river of resistless rapids for another portion, united with a chain of lakes which were inland seas, in separating it from Canada. To the east the country was bounded by the Atlantic, to the south by the Gulf of Mexico, to the west by the Mississippi, which separated it from a vast wilderness, which at that time was as much a natural barrier to the west as was the ocean to the east. Within these boundaries were all the resources necessary to national prosperity; and there existed in marvellous completeness natural highways by which these sections, diversified as they were, were knit together. To the Atlantic, on the east, descended navigable rivers which made the whole seaboard open to commerce. On the west, the Mississippi River, beginning its navigable course in Pittsburgh, formed a medium of communication between north, south, and west. We can

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