they proceed from the highest authority, and are exceedingly clear and logical in their deductions. The same doctrines had been previously declared in the Court of Errors of New York, in the steamboat case of Livingston v. Van Ingen. (a) "Our safe rule of construction and action," as it was there observed, (b) "was this, that if any given power was originally vested in this state, if it had not been exclusively ceded to congress, or if the exercise of it had not been prohibited to the states, we might then go on in the exercise of the power until it came practically in collision with the exercise of some congressional power. When that happened to be the case, the state authority would so far be controlled, but it would still be good in those respects in which it did not contravene the provision of the paramount law." A similar exposition of the concurrent jurisdiction of the states was given by the Supreme Court of Pennsylvania, in Moore v. Houston; (c) and by the chief justice of Massachusetts, in Blanchard v. Russell. (d)1 When the constitution of the United States was under the consideration of the state conventions, there was much concern expressed on the subject of the general power *392 of taxation over all objects of taxation, vested in the national government; and it was supposed that it would be in the power of congress, in its discretion, to destroy in effect the concurrent power of taxation remaining in the states, and to deprive them of the means of supplying their own wants. the resources of taxation might, by degrees, become the subjects of federal monopoly. The states must support themselves by direct taxes, duties, and excises, and congress may lay the same burden, at the same time, on the same subject. Suppose the national tax should be as great as the article, whether it be land, or distilled spirits, or pleasure-carriages, for instance, will All (a) 9 Johns. Rep. 507. (b) 9 Johns. Rep. 576. 1 An act of a state imposing tolls for improving the navigation of a river, unless it conflicts with the powers of congress in actual exercise, is constitutional. And the establishment, by act of congress, of a port of delivery on the river, is not a conflicting exercise of power. Thames Bank v. Lovell, 18 Conn. R. 500. The United States v. The New Bedford Bridge, 1 Wood. & Minot, R. 401. 1 conveniently and prosperously bear, and the state should be obliged to lay a further tax for its own necessities; the doctrine, as I understand it, is, that the claim of the United States would be preferred, and must be first satisfied, because the laws of the United States, made in pursuance of the constitution, are the supreme law of the land. The author of The Federalist (a) admits that a state might lay a tax on a particular article, equal to what it would well bear, but the United States would still have a right to lay a further tax on the same article; and that all collisions, in a struggle between the two governments for revenue, must and would be avoided by a sense of mutual forbearance. He nowhere, however, meets and removes the difficulty, in the case of a want of this mutual forbearance, where there is a concurrent tax laid on the same subject, which will not bear both taxes. He says only, that the United States would have no right to abolish the state tax. This is not contended; but would not the United States have a right to declare, that their taxes were liens from the time they were imposed? and would they not, as of course, be entitled to be first paid? and must not the state collector, in all cases, stand by * 393 and wait until the national tax is collected, before he proceeds to collect his state tax out of the exhausted subject? Upon the doctrine of the federal courts, and upon the doctrine of The Federalist himself, this must be the case; and though the state legislatures have a concurrent jurisdiction in the case of taxation, except as to imposts, yet, in effect, though not in terms, this concurrent power becomes a subordinate and dependent power. In every other case of legislation, the concurrent power in the state would seem to be a power entirely dependent, and subject to be taken away absolutely, whenever congress shall choose to exercise their powers of legislation over the same subject. I do not mean to be understood to question the validity, or to excite alarm at the existence of this doctrine. The national government ought to be supreme within its constitutional limits, for it is intrusted with the paramount interests and general welfare of the whole nation. Our great and effective security consists in the fact, that the constituents of the (a) No. 23. See, also, Nos. 31, 33, 34. general and of the state governments are one and the same people; and the powers of the national government must always be exercised with a due regard to the interest and prosperity of every member of the Union; for on the concurrence and good will of the parts, the stability of the whole depends. My object is to discover what this concurrent power of legislation amounts to, and what is its value, and on what constitutional foundation it is supported. * * It was observed by Mr. Hamilton, in the convention of New York, in 1788, (a) that if the United States, and the state, should each lay a tax on a specific article, and the individual should be unable to pay both, the party who first levied would hold the property. But this position must be received with some qualification. The United States have de- 394 clared by law, that they were entitled, in respect to their debts, to priority of payment; and when it was said that this claim would interfere with the rights of the state sovereignties, and would defeat the measures they had a right to adopt, to secure themselves against delinquencies, the answer given in Fisher v. Blight, (b) is, that "the mischief suggested, so far as it can really happen, was the necessary consequence of the supremacy of the laws of the United States, on all subjects to which the legislative power of congress extends." It would seem, therefore, that the concurrent power of the legislation in the states is not an independent, but a subordinate and dependent power, liable, in many cases, to be extinguished, and in all cases to be postponed, to the paramount or supreme law of the Union, whenever the federal and the state regulations interfere with each other.(c) (a) Debates in the New York Convention, printed by Francis Childs, p. 113. (b) 2 Cranch, 397. (c) Mr. Hamilton, as secretary of the treasury, in his report in January, 1790, on "a provision for the support of the public credit of the United States," recommended the assumption of the state debts, on the ground, among others, that if the states were left with the duty and burden of providing for the payment of the state debts contracted during the revolutionary war, (and which were then estimated at twenty-five millions of dollars,) there might be a competition for resources, producing interfering regula tions, collision, and confusion. Particular branches of industry might be oppressed by an accumulation of taxation upon them, in the exercise, at the same time, of the powers of the Union and of the states upon the same objects, and by different modes. In Wayman v. Southard, (a) the question arose, how far the judicial process of the federal courts could be controlled by the laws of the several states. It was decided, that congress had exclusive authority to regulate proceedings and executions in the federal courts, and that the states had no authority to control such process; and, therefore, executions by fieri facias, in the federal courts, were not subject to the checks created by the Kentucky statute, forbidding sales on execution of land for less than three fourths of its appraised value. It was, in that case, further observed, that the forms of execution, and other process, in the federal courts, in suits at common law, except modes of proceeding, were to be the same as used in September, 1789, in The secretary, though fully and deeply impressed with the embarrassment of the case, does not seem to question the authority of each government to lay taxes in its discretion, but assumes the policy and necessity of moderation and forbearance, when there should happen to be a pre-occupancy in the taxation of an article. It has become a settled point, and I think it was a very clear one from the beginning, that in the construction of the power of congress, to lay and collect taxes, duties, imposts, and excises, it is not to be taken as an independent grant of power, without any defined limit or object, but that it is a power to be considered in connection with the words immediately thereafter, by which it is made subject to the qualification or limitation of being exercised for the purpose of "paying the debts, and providing for the common defence and general welfare of the United States." The purpose for which the taxes are to be laid, is not of itself a distinct, substantial power, but a qualification of the power of taxation, by restricting it to those great and specified purposes, though the application of it to those purposes does undoubtedly admit, and necessarily requires the exercise of a large and undefined discretion. The progress of this question, and the very weighty opinions upon it, are fully shown and forcibly illustrated in 2 Story's Com. 367-398; and see particularly Mr. Monroe's message on the bill respecting the Cumberland road, May 4th, 1822, Ibid. 445-456. That congress possess the power to appropriate money raised by taxation or otherwise, for other purposes, in their discretion, than those pointed out in the enumerated powers, is a question that has given rise to very able and acute discussions; and the affirmative side of the question has been sustained and successfully vindicated by the practice of the government, and the weighty authority, among others, of Mr. Hamilton and Mr. Monroe, in celebrated documents under their official sanction. See Hamilton's report on Manufactures, and President Monroe's message above referred to. Story's Com. vol. ii. pp. 440–458. This distinguished commentator gives to the affirmative side of the question the sanction also of his decided opinion.1 (a) 10 Wheaton, 1. U. S. Bank v. Halstead, 10 Id. 51, S. P. 1 It has been decided, in a case most elaborately argued, that a state has a right to tax a resident citizen for his interest in ships, registered and licensed under the laws of the United States. Howell v. State of Maryland, 3 Gill's R. 14. *395 the supreme courts of the states, subject only to alterations and additions by congress, and by the federal courts, but not to alterations since made in the state laws and practice. It was further observed, that the laws of the several states, were, by the judiciary act of 1789, sec. 34, to be regarded as rules of decision in trials at common law, in cases where they apply, unless the constitution, treaties or statutes of the United States had otherwise provided. This, however, did not apply to the practice of the federal courts. As to that, the laws of the states were no rule of decision, and the direction was intended only as a legislative recognition of the principles of universal jurisprudence, as to the operation of the lex loci, in the trial and decision of causes. The law respecting final process was materially altered by the act of congress of 1828, (a) and that act adopted into the national courts in each state respectively, (Louisiana excepted,) the existing laws and usages of the several courts, regulating the effect and operation of judgments and executions, and the proceedings for their enforcement; but where judgments were a lien in the state upon the property of the defendants, and the defendants were entitled to an imparlance thereon of one term or more, the defendants in the United States courts, in such state, are entitled to an imparlance of one term. If, in any state, there were no courts of equity with the ordinary equity jurisdiction, the courts of the United States, in such states, might prescribe the mode of executing their decrees in equity; and the courts of the United States were also invested with power to alter, in their discretion, the final process in their courts, and to conform the same to legislative changes made for the state courts. (2.) As to the concurrent power of the states in matters of judicial cognizance. Concurrent judicial jurisdiction In the 82d number of The Federalist, it is laid down of the states. as a rule, that the state courts retained all preëxisting authorities, or the jurisdiction they had before the adoption of the constitution, except where it was taken away, either by an exclusive authority granted in express terms to the Union, or in (a) Act of congress of May 19th, 1828, c. 68, sec. 2, 3. |