States Government, or anything used by this government as an agency or instrumentality.

This principle is merely an application of the rule that a State cannot exercise any power which will in any way interfere with the carrying on of the Federal government. The case of McCulloch vs. Maryland,28 grew out of an attempt by the State of Maryland to tax the paper issued by the branch of the Bank of the United States situated in that State. The Supreme Court held that the United States Bank had been made an agency of the United States Government, and therefore could not be subject in any way to State interference. Chief Justice Marshall in the course of his decision in this case said: "This great principle is that the Constitution and the laws made in pursuance thereof are supreme; that they control the Constitutions and Laws of the several states, and cannot be controlled by them. From this, which may almost be termed an axiom, other propositions are deduced as corollaries, on the truth or error of which, and on their application to this case, the case has been supposed to depend. These are: 1. That a power to create implies a power to preserve. 2. That a power to destroy, if wielded by a different hand, is hostile to, and incompatible with these powers to create and preserve. 3. That where this repugnancy exists, that authority which is supreme must control, not yield to that over which it is supreme.

"That the power of taxing it by the States may be exercised, so as to destroy it, is too obvious to be denied. But taxation is said to be an absolute power, which acknowledges no other limits than those expressly, prescribed in the Constitution, and like sovereign power 28 4 Wheaton, 316

of any other description, is trusted to the discretion of those who use it. But the very terms of this argument admit that the sovereignty of the State, in the article of Taxation itself, is subordinate to, and may be controlled by the Constitution of the United States. How far it has been controlled by that instrument must be a question of construction. In making this construction, no principle can be declared, can be admissible, which would defeat the legitimate operations of a supreme government. It is of the very essence of supremacy, to remove all obstacles to its action within its own sphere, and so to modify every power vested in subordinate governments, as to exempt its own operations from their own influence. This effect need not be stated in terms. It is so involved in the declaration of supremacy, so necessarily implied in it, that the expression of it could not make it more certain. We must, therefore, keep it in view while construing the Constitution." The tax laid by the State of Maryland was then held to be unconstitutional.

The effect, therefore, of the decision in McCulloch vs. Maryland was not only to give a liberal interpretation to the extent of the implied powers of Congress, but also to protect all the functions of the United States government against any interference by the State governments, particularly by means of taxation.

This principle laid down in McCulloch vs. Maryland was re-affirmed by the Supreme Court in Osborn vs. The Bank of the United States,20 another case involving an attempted taxation of the United States Bank by a State; in Dobbins vs. The Commissioners of Erie County,30 which arose from a captain of a United States revenue cutter being taxed in Pennsylvania upon his So 16 Peters, 435.

999 Wheaton, 738.

salary as a national officer, and in Weston vs. Charleston," where the plaintiff sought the annulment of an assessment upon United States stock. A bank used as an agent by the United States government, the salary of a Federal officer, and the bonds of the United States, were alike held to be protected from State taxation. SECTION 66. PROTECTION OF THE STATES AGAINST TAXATION BY THE UNITED STATES.

Half a century after McCulloch vs. Maryland the reverse of this question was presented to the Supreme Court in a case involving the right of the United States to lay and collect a tax on the salaries of State Officials. The case of the Collector vs. Day," decided in 1870, arose out of an attempt of a collector of the Internal Revenue of the United States, to collect a tax on the salary of a Judge of the State of Massachusetts levied in accordance with certain acts of Congress passed in 1864, 1865 and 1867. The Court held that Day's salary was not subject to taxation by the United States, that: "The general government, and the States, although both exist within the same territorial limits, are separate and distinct within their respective spheres. The former in its appropriate sphere is supreme, but the States within the limits of the powers, not granted, or, in the language of the tenth amendment 'reserved,' are as independent of the general government as that government within its sphere is independent of the States," and that the States were entitled to the same protection against taxation by the United States government, that the United States government had always been given against taxation by the States.

1 2 Peters, 449.

82 11 Wallace, 113.

CHAPTER VII.

THE REGULATION OF COMMERCE.

SECTION 67. THE COMMERCE CLAUSE OF THE FEDERAL CONSTITUTION.

The power of Congress over Commerce is given in the third clause of the eighth section of the first article of the Constitution in the following words:

(Congress shall have power) "To regulate Commerce with foreign nations, and among the several states, and with the Indian tribes."

The regulation of Commerce with foreign nations, is intrusted to the central government in the United States as it must be to every true national government. The absence of this power in the central government under the Articles of Confederation constituted one of the chief sources of weakness of that instrument. Scarcely less essential to the harmony and existence of the United States was the placing in the hands of the new Central government of the power of regulating commerce between the several states. The absolute necessity of such control had been shown by the controversies between the different states during the period from 1783 to 1787. The power of the United States over Commerce (except that confined within the limits of a single state) was made complete by the Constitution giving to it the regulation of commerce with the Indian tribes.

The importance of this power of Congress over commerce, and more particularly over interstate com