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“The constitution is to be interpreted by what was the condition of the parties to it when it was formed; by their object and purpose in forming it; and by the actual recognition in it, of the dissimilar insti. tutions of the States. The exercise of constitutional power by the United States, or the consequences of its exercise, are not to be con. cluded by the summary logic of ifs and syllogisins.”
Shallow thinkers are very apt to imagine that they have discovered the solution of a difficulty, when they have only lit upon a few words or phrases, which may seem to them to be exponents of satisfactory ideas, but which really signify nothing definite or pertinent, and do not advance the argument a single step. So in this case Mr. Justice Wayne no doubt supposes that he has settled the question forever by the phrases “subject matter" and "fundamental organization.” But what can be more vague and indefinite than “subject matter ?" It may mean any thing and every thing. Pauperism, crime, order, security, property, may all be "subject matter” in New York, as well as slavery in Georgia.
New-York has her "fundamental organization," too, no less than Georgia, and property in lands and goods is as much a part of it as property in slaves is a part of the "fundamental organization” of Georgia. And she has just as much righi to provide for its security by excluding persons whose presence might be dangerous to it. It is conceded that she may exclude paupers, and convicts, and dangerous and suspected persons. But who is to ascertain, and how is it to be ascertained, what persons are paupers or convicts, or dangerous or suspected ? Are socialists, communists and other agrarians dangerous persons, and might they be excluded ? Suppose that, under the pretence of excluding paupers and convicts, and dangerous and suspected persons, she excludes persons that are neither. To whom shall the appeal be made, how shall the question be tried, and in what manner shall the error be corrected ? It is not now, nor was it when the constitution was adopted, any part of the "fundamental organization" of Georgia that there should be no free negroes in the State: for there were then, and are still, many of them. And if we are not greatly mistaken, until within a few years there was nothing in the laws or practice of that State, or, so far as we know, of any of the Southern States,
to prevent free negroes from migrating to and residing in them. How, then, can it be supposed, if the constitution deprives the States of the right to determine who shall be admitted within their borders, that it was adopted with the understanding that the slaveholding States retained the right to exclude slaves and free negroes whenever they might think proper. The truth is, that the right of the slaveholding States to exclude free negroes stands upon the broad principle of the right of every State to admitor exclude whonisoever she pleases—the same principle which authorizes the State of New York to tax alien passengers landing on her shores. It can be put on no other foundation, which would not be as shifting as the sands of the sea shore.
Mr. Justice Wayne would substitute the discretion of the supreme court for the discretion of the State. He thinks that the admission of free negroes would be dangerous to the security of the slaveholding States, and that therefore they have a right to exclude them. If he thought that their admission would not be dangerous he would deny the right of the States to exclude them, though the States themselves might think differently. He sees only particular cases; but is incapable of rising to the great principle on which it depends.
He says that the constitution is not to be interpreted "the logic of ifs and syllogisms.” If his practice is to be taken as an illustration of the true method of interpreting it, neither the ifs and syllogisms, nor any of the rules and principles of logic, have any part in it.
We have no taste for the forms and terms of school logic, and quarrel with no man for not using them; but we cannot consent to dispense with its substantial principles, and to allow a disputed proposition to be proved by repeating it over again in another form of words, or by other propositions, which have no logical relation to it, and which require to be proved quite as much as the first. And such is the learned justice's mode of reasoning. Take, for example, the following passage, not selected on account of any thing peculiar in it, but picked up indiscriminately:
Thirgs imported, it is admitted, the State cannot tax, whether congress has made them dutiable articles or free goods ; but persons, it is said, they can, because a State's right to tax is only restrained in
respect to imports and exports, and that, as a person is not an import, a lax or duty may be laid upon him as the condition of his admission into the State.
“But this is not a correct or full view of the point. A State's right to tax may only be limited to the extent mentioned ; but that does not give the State the right to tax a foreigner or person for coming into one of the States of the United States. That would be a tax or revenue act, in the nature of a regulation of commerce, acting upon navi. gation. It is not a disputable point, that in the power given to congress to lay and collect taxes, duties, imposts and excises, it may, in the exercise of its power to regulate commerce, tax persons as well as things, as the condition of their admission into the United States. To lay and collect taxes, duties and imposts gives to congress a plenary power over all persons and things for taxation, except exports. Such is the received meaning of the word ‘taxes,' in its most extended sense; and always so when it is not used in contradistinction to the terms of taxation, having a limited meaning as to the objects to which, by usage, the terms apply. It is, in the constitution, used in both
In its extended sense, when it is said congress may lay and collect taxes; and in a more confined sense, in contradistinction to duties, imposts and excises.
"The power, then, to tax, and the power to regulate commerce, give the right to congress to tax persons, as a regulation of commerce and navigation, who may come into the United States. I have already mentioned, among the restraints which nations may impose upon the liberty or freedom of commerce, are such as may be put upon foreigners coming into or living in its territories. It exists to its fullest extent as a portion of the commercial rights of nations, when not mitigated by treaties.
“ The power to regulate commerce with foreign nations, and among the several States, having been given to congress, congress may, but the States caonot, tax persons for coming into the United Stat s.
It is urged, however, in reply to what has just been said, that as the power to regulate commerce, and the right to levy taxes, are distinct and substantive powers, that the first cannot be used to limit the right of the State to tax, beyond the prohibition upon them not to tax exporis or imports.
“The proposition is rightly stated; but what is gained in these cases from it? Nothing.
“ The sums directed to be paid by or for passengers are said to be taxes which the States have a right to impose, in virtue of their police powers, either to prevent the evils of pauperism or to protect the inhabitants from apprehended disease.
“ But the question, in these cases, is not whether the States may or may not tax, but when they can levy a tax upon passengers coming into
the United States under the authority and sanction of the laws of congress and trealy stipulations."
Now here the proposition to be proved is, that a State cannot tax a person for coming into it. And how is it proved ? First, the State has no right to tax a foreigner or person for coming into one of the United States; which is only the same proposition repeated in another form: for coming into the State is coming into one of the United States.
Next, it would be a regulation of commerce. But this is a proposition disputed and not proved.
Then congress, in the exercise of the power to regulate commerce, may tax persons as the condition of their admission. Another disputed point, (though under the power to lay taxes, they may, perhaps, concurrently with the States, tax persons coming into the States, but not as the condition of their coming.)
Then again, congress, under the taxing power, may tax all persons and things except exports. This is true, but proves nothing: for congress, under the same power, may tax lands, and so may the States.
Then the power to tax and the power to regulate commerce give to congress the right to tax persons coming into the United States. Two propositions, already stated separately, now repeated jointly. Then, under the power to regulate commerce, congress may tax persons for coming into the United States, but the States cannot. A mere repetition of what had been said before as to congress, and of the proposition to be proved, as to the State.
And at the end, instead of having a clear demonstration of the poinı to be proved, we are told what the question is, and are just as far from a satisfactory conclusion as we were at the beginning. For it is not proved that there is any act of congress or treaty stipulation with which the tax in question conflicts, or that if the State has a constitutional right to levy the tax, any treaty or legislation of congress could destroy or impair that right, or interfere with its exercise. Three or four pages of twaddle, about territorial and political sovereignty, and absolute sovereignty and demi-sovereignty and the police power of the States, which we have entirely passed over, present equally fine specimens of the same sort of logic.
Several pages of the opinion are devoted to what he calls
a narrative in respect to the case of the city of New York and Milne, decided some time before. This is not worthy of further notice than that, in connection with other circumstances, it leaves the impression that there is a sort of faction or insurrection, of the inferior members of the court, against the superior wisdom and authority of the chief justice and the more respectable portion of his associates; and that Mr. Justice Wayne assumes, if it is not conceded to him, the position of head of the faction, or leader of the insurgent forces.
The learned justice's style, bad as is that of some of his associates, is still worse. It is overloaded with words; scarcely any of his sentences convey a distinct idea; and some of them are quite beyond the pale of criticism.
For example, what respectable critic would meddle with such sentences as these :
“ Nothing is said that will not be conceded by all persons, that the 6th clause of the 9th section of the 1st article of the constitution, declaring that no preference shall be given by any regulation of coinmerce or revenue to the ports of one State over those of another,' was intended to establish among them a perfect equality in commerce and navigation.” “ As to the extent of those qualifications, or what may be the rights of the United States and the States in that regard, I shall not speak of now.”
After having made some remarks upon the case of Gibbons and Ogden, decided in the time of Chief Justice Marshall, the learned justice closes with the following flourish:
“There were giants in those days; and I hope I may be allowed to say, without more than judicial impressiveness of manner or of words, that I rejoice that the structure raised by them for the defence of the constitution has not this day been weakened by their successors."
There is certainly nothing very impressive, judicially or otherwise, in the words; what the manner was, those only can tell who enjoyed the felicity of being present; but if it was in keeping with the words, the effect of both combined must have been rather more lidicrous than impressive. We have little doubt that the decision will be repudiated by the sober judgment of public opinion, as so many other decisions of the supreme court on constitutional questions have been before. And that if ever the court should