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pline its own militia, in the absence of, or subordinate to, the regulations of Congress. This power originally existed in the states, and the grant of it to Congress was not necessarily exclusive, unless a concurrent power in the states would be repugnant to the grant, and there was no such repugnancy in the nature of the power. But the question was, whether a state legislature had any concurrent power remaining after Congress had provided in its discretion for the case. The conclusion was, that when once the legislature of the Union has exercised its powers on a given subject, the state power over that same subject, which had before been concurrent, was by that exercise prohibited, and this was the opinion of the court.
These are sound expositions of the paramount powers of the general government, and the same doctrines had been previously declared in the Court of Errors of New-York, in the steam-boat case of Livingston v. Van Ingen." "Our safe rule of construction and of action," as it was there observed, "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 has not been prohibited to the states, we might then go on in the exercise of 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 controled, but it would still be good in all 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; and by the chief justice of Massachusetts, in Blanchard v. Russel.d
When the constitution of the United States was under the consideration of the state conventions, there was much
a 9 Johnson's Rep. 507.
c3 Serg. & Rawl. 179. d 13 Mass. Rep. 16.
concern expressed on the subject of the general power 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. All 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 burthen, 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 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 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 no where, 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, and which will not bear both taxes. He says only, that the United States would have no right to abolish the 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 and wait until the na
a No. 23. See, also, No. 31. 33, 34.
tional 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 states would seem to be a power entirely dependent, and subject to be taken away absolutely, whenever Congress should 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 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 foundations it is supported.
It was observed by Mr. Hamilton, in the convention of New-York, in 1788, that if the United States, and the state, should each lay a like 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
a Debates in the New-York Convention, printed by Francis Childs, p. 113.
declared 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, 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 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.
In Weyman v. Southard, 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 new 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 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
a 2 Cranch, 397.
b 10 Wheaton, 1.
rules of decision in trials at common law, in cases where
(2.) As to the concurrent power of the states in matters of judicial cognizance.
In the 82d number of the Federalist, it is laid down as a Concurrent rule, that the state courts retained all pre-existing 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 case where a particular authority was granted to the
■ Act of Congress, May 19th, 1828, ch. 68. sec. 2, 3.