[Weston and others vs. The City Council of Charleston.]

gives to congress the power "to borrow money on the credit of the United States." And it is said that to permit the states to tax the stock, might, by possibility, sometimes embarrass the United States in procuring loans. In the examination of the powers of the general government under the constitution," The Federalist" is often referred to as a work of high authority on questions of this kind; and the author has seldom been charged with surrendering any powers that can be brought fairly within the letter or spirit of the constitution. In No. 32 of that work, the writer, in discussing the subject of taxation, and the conflicts that might arise between the general and state governments, says, "Although I am of opinion that there would be no real danger of the consequences to the state governments, which seem to be apprehended from a power in the union to control them in the levies of money, yet I am willing to allow, in its full extent, the justness of the reasoning, which requires that the individual states should possess an independent and uncontrollable authority to raise their own revenues for the supply of their own wants. And making this concession, I affirm, that (with the sole exception of duties on imports and exports) they would, under the plan of the convention, retain that authority, in the most absolute and unqualified sense; and that an attempt on the part of the national government to abridge them in the exercise of it, would be a violent assumption of power, unwarranted by any article or clause of its constitution. That a negation of the authority of the states to impose taxes on imports and exports, is an affirmance of their authority to impose them on all other articles. That it is not a mere possibility of inconvenience in the exercise of powers, but an immediate constitutional repugnancy, that can by implication alienate and extinguish a pre-existing right of sovereignty."

The power of the general government to borrow money on the credit of the United States, is not only an express power granted to congress, but one that it must have been foreseen would be brought into practical operation, and that stock would of course be created; and yet it never entered into the discriminating mind of the writer referred

[Weston and others vs. the City Council of Charleston.]

to, that merely investing property, subject to taxation, in
stock of the United States, would withdraw the property
from taxation. It is said, the credit of the United States is
a creation of the general government, which did not exist
until they brought it into being, and in the production of
which the state governments did not participate; that the
states could not tax it before the constitution was formed,
for it did not exist. This view of the subject is calculated
to make an erroneous impression. It is true it did not exist
in the shape of stock, but the property existed in some other
form. No one procures stock without exchanging for it an
equivalent in money or some other property; all which was,
doubtless, subject to the payment of taxes. Exemption
from taxation may hold out an inducement to invest pro-
perty in stock of the United States, and might, possibly,
enable the government to procure loans with more facility,
and perhaps on better terms. But this possible, or even
certain benefit to the United States, cannot extinguish pre-
existing state rights. To consider this a tax upon the means
employed by the general government for carrying on its
operations, is, certainly, very great refinement. It is not a
tax that operates directly upon any power or credit of the
United States. The utmost extent to which the most
watchful jealousy can lead is, that it may, by possibility,
prevent the government from borrowing money on quite so
good terms. And even this inconvenience is extremely
questionable; for the stock only pays the same tax that the
money with which it was purchased did. And whether the
property exists in one form or the other, would seem to be
matter of very little importance to the owner.
But great
injustice is done to others, by exempting men who are
living upon the interest of their money, invested in stock of
the United States, from the payment of taxes; thereby esta-
blishing a privileged class of public creditors, who, though
living under the protection of the government, are exempt-
ed from bearing any of its burthens. A construction of the
constitution, drawing after it such consequences, ought to be
very palpable before it is adopted.

But it seems to me, that the right of the states to tax pro

[Weston and others vs. The City Council of Charleston.]

perty of this description is admitted by the Court, in the case of M'Cullough vs. The state of Maryland, 4 Wheat. 436. The Court there considered the tax imposed directly upon the operations of the bank, which was employed by the government as one of the means of carrying into execution its constitutional powers; and in summing up the result, it is said, the states have no power by taxation, or otherwise, to retard, impede, burthen, or in any manner control the operations of the constitutional laws of congress, to carry into execution the powers vested in the general government; and yet the Court say this opinion does not extend to a tax paid by the real property of the bank, in common with the other real property within the state, nor to a tax imposed on the interest which the citizens of Maryland may hold in the bank, in common with other property of the same description throughout the state.

In the case now before us, the tax is not direct upon any means used by the government to carry on its operation. It is only a tax upon property acquired through one of the means employed by the government to carry on its operations, viz. the power of borrowing money upon the credit of the United States; and it is not perceived how any just distinction can be made in this respect, between bank stock, and stock of the United States; both are acquired through the medium of means employed by the government in carrying on its operations; and both are held as private property; and it is immaterial to the present question in what manner it was acquired.

The broad proposition (laid down in the case of M'Cullough vs. The state of Maryland) that the states cannot tax any instrument or means used by the general government in the execution of its powers, must be understood as referring to a direct tax upon such means or instrument; and that such was the understanding of the Court, is to be inferred from the exemption of bank stock from the operation of the rule; and the parallel cases put to illustrate the application of the doctrine lead to the same conclusion. Thus it is said the states cannot tax the mint; but this does not imply that they may not tax the money coined at the mint, when held and owned by individuals. Again, it is said the states cannot

[Weston and others vs. The City Council of Charleston.]

tax a patent right; but if the patentee, from the sale or use of his patent has acquired property, or is receiving an income, it could not be intended to say that such property or income cannot be taken into the estimate of his taxable property.

The unqualified proposition that a state cannot directly or indirectly tax any instrument or means employed by the general government in the execution of its powers, cannot be literally sustained. Congress has power to raise armies, such armies are made up of officers and soldiers, and are instruments employed by the government in executing its powers; and although the army, as such cannot be taxed, yet it will not be claimed, that all such officers and soldiers are exempt from state taxation. Upon the whole, considering that the tax in question is a general tax upon the interest of money on loan, I cannot think it any violation of the constitution of the United States, to include therein interest accruing from stock of the United States.

I am accordingly of opinion, that there is no error in the opinion of the state court.

This cause came on to be heard on the transcript of the record from the constitutional court of the state of South Carolina, and was argued by counsel; on consideration whereof, this Court is of opinion, that there is error in the judgment of the said court in this, that the said court decided that an ordinance passed by the city council of Charleston for the year 1823, entitled, an ordinance to raise supplies for the use of the city of Charleston for the year 1823, is, so far as the same imposes a tax on the six and seven per cent. stock of the United States, consistent with the constitution of the United States. Whereas, it is the opinion of this Court, that so much of the said ordinance as imposes the said tax, is repugnant to the constitution of the United States, and void. Whereupon it is considered, ordered and adjudged by this Court, that the said judgment be, and the same is hereby reversed and annulled, and that the said cause be, and the same is hereby remanded to the said constitutional court for the state of South Carolina, that such further proceedings may be had therein as may consist with law and justice.

THE PRESIDENT, DIRECTORS AND COMPANY OF THE BANK OF THE UNITED STATES, APPELLANTS vs. DAVID WEISIGER, APPELLEE.

Where the appellee had died after the commencement of the term, and the Court not knowing his decease had decided upon the case, after argument, the Court ordered the decree to be entered as of the first day of the term.

IN this case, which had been argued on a previous day of the term, and the opinion of the Court delivered in favour of the appellants, (See ante, page 331) Mr Bibb having informed the Court that the defendant, Weisiger, had died since the commencement of the term; stated that he had been of counsel with the respondent, but he considered that his authority had expired by his death. He objected to the entry of a decree.

Mr Sergeant, for the complainants, moved the Court to cause the decree to be entered of a day in the term before the respondent's death; and he cited Davis vs. Davis, 9 Fes. 461. Campbell vs. Mesier, 4 Johns. C. R. 342. Asburnham vs. Thompson, cited 2 Mad. C. P. 529, as fully establishing the practice according to his motion.

Mr Bibb, contra.

The Court ordered the decree to be entered as of the first day of the term,

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