Cessio bo

norum.

And while on this point, it may not be amiss to observe, that the cessio bonorum of the Roman law, introduced by Julius Cæsar, and which prevails at present in most parts of the continent of Europe, only exempted the person of the debtor from imprisonment. It did not release or discharge the debt, nor exempt the future acquisitions of the debtor from execution for the debt. The English statute of 32 Geo. II., commonly called the lords' act, and the more recent English statutes of 33 Geo. III., 1 Geo. IV., 3 Geo. IV. and 5 Geo. IV., have gone no further than to discharge the debtor's *423 person; *and it may be laid down as the law of Germany, France, Holland, Scotland, England, &c., that insolvent laws are not more extensive in their operation than the cessio bonorum of the civil law. In many parts of Germany, as we are informed by Huberus and Heineccius, a cessio bonorum does not even work a discharge of the debtor's person, and much less of his future property. The cession under the Roman law did not extend to protect the debtor from personal responsibility, for penalties accruing on the

retrospective laws were not within the constitutional prohibition, provided they did not impair the obligation of contracts, or partake of the character of ex post facto laws. It has also been decided, that a state government may tax state banks, eo nomine, at discretion, and that it would not be a violation of the contracts creating the banks, for no contract was to be implied not to impose such a tax Providence Bank v. Billings, 4 Peters' U. S. Rep. 514. It has also been adjudged in Louisiana and Mississippi, that a state law requiring a bank to receive at par its own notes, though under par in the market, in payment of debts due to it, is constitutional. 12 Rob. Lo. R. 125. 3 Smedes & Marshall, 661. (1)

According to the Spanish law, (Partidas, 1. 3. tit. 15. part 5,) the debtor's property, acquired subsequently to the cessio bonorum, was only liable so far as it exceeded the amount necessary for his support. But the law of Louisiana contains no such exception. 3 Martin's Rep. 588. 4 Ibid. 292, 293.

b Code, 7. 71. 1. Dig. 42. 3, 4 and 6. Voet ad Pand. 42. 3. 8. Heineccii, Opera, tome v. p. 620; tome vi. pp. 384. 387. Code de Commerce, No. 568. Repertoire Universel et Raisonné de Jurisprudence, par Merlin, tit. Cession de Biens. Esprit des Loix, tome i. 114. 2 Bell's Com. 580-597. 16 Johns. Rep. 244, note.

• Hub. Prælec. tome ii. 1454. Heinec. Elem. Jur. Civ. secund. ord. Pand. pp. 6. 1. 42. tit. 3. Elem. Jur. Ger. lib. 2. tit. 13. sec. 387.

(1) A statute, making the stockholders liable for the debts of the corporation, is valid in respect to debts subsequently contracted, and binding on one becoming a member after the passage of the act. Stanley v. Stanley, 26 Maine R. 191.

commission of crimes. Si in are non habeat, in pelle luit. But in Germany the cessio bonorum has the severe operation of depriving the insolvent of his remedy for a personal trespass, committed prior to the cession, so far as pecuniary compensation is in question.a

No state can pass na

laws.

(5.) No state can pass naturalization laws. By the constitution of the United States, congress have turalization power to establish a uniform rule of naturalization. It was held, in the Circuit Court of the United States, at Philadelphia, in 1792, in Collet v. Collet,b that the state governments still enjoy a concurrent authority with the United States upon the subject of naturalization, and that though they could not contravene the rule established by congress, or "exclude those citizens who had been made such by that rule, yet that they might adopt citizens upon easier terms than those which congress may deem it expedient to impose." But though this decision was made by two of the judges of the Supreme Court, with the concurrence of the district judge of Pennsylvania, it is obvious that this opinion *was *424 hastily and inconsiderately declared. If the construction given to the constitution in this case was the true one, the provision would be, in a great degree, useless, and the policy of it defeated. The very purpose of the power was exclusive. It was to deprive the states individually of the power of naturalizing aliens according to their own will and pleasure, and thereby giving them the rights and privileges of citizens in every other state. If each state can naturalize upon one year's residence, when the act of congress requires five, of what use is the act of congress, and how does it become a uniform rule?

This decision of the Circuit Court may be considered, as in effect, overruled. In the same Circuit Court, in 1797, Judge Iredell intimated, that if the question had not previously occurred, he should be disposed to think, that the power of naturalization operated exclusively, as soon as it was exercised by congress. And, in the Circuit Court of Pennsylvania, in 1814, it was the opinion of Judge Washington, that

c

No state can tax a national bank

or stock.

the power to naturalize was exclusively vested in congress.a Afterwards, in Chirac v. Chirac,b the Chief Justice of the United States observed, that it certainly ought not to be controverted, that the power of naturalization was vested exclusively in congress. In Houston v. Moore, Judge Story mentioned the power in congress to establish a uniform rule of naturalization, as one which was exclusive, on the ground of there being a direct repugnancy or incompatibility in the exercise of it by the states. The weight of authority, as well as of reason, may, therefore, be considered as clearly in favour of this latter construction.

*425

*(6.) The states cannot impose a tax on the national bank, or its branches, or on national stock.

The inability of the states to impede or control, by taxation or otherwise, the lawful institutions and measures of the national government, was largely discussed and strongly declared in the case of M'Culloch v. The State of Maryland.a In that case, the state of Maryland had imposed a tax upon the Branch Bank of the United States established in that state, and, assuming the bank to be constitutionally created, and lawfully established in that state, the question arose on the validity of the state tax. It was adjudged that the state governments had no right to tax any of the constitutional means employed by the government of the Union to execute its constitutional powers, nor to retard, impede, burden, or in any manner control the operations of the constitutional laws enacted by congress, to carry into effect the powers vested in the national government.

To define and settle the bounds of the restriction of the power of taxation in the states, and especially when that restriction was deduced from the implied powers of the general government, was a great and difficult undertaking; but it appears to have been, in this instance, most wisely and most successfully performed. It was declared by the court, that it was not to be denied, that the power of taxation was to be concurrently exercised by the two governments; but such was the paramount character of the constitution of

Golden v. Prince, 3 Wash. Cir. Rep. 313. b 2 Wheaton, 269.

5 Wheaton, 49. d 4 Wheaton, 316.

the United States, that it had a capacity to withdraw any subject from the action even of this power; and it might restrain a state from any exercise of it which may be incompatible with, and repugnant to, the constitutional laws of the Union. The great principle that governed the case was, that the constitution, and the laws made in pursuance thereof, were supreme, and that they controlled the constitution and laws of the respective states, and could not be controlled by them. It was of the very essence of su- *426 premacy, 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 influence. A supreme power must control every other power which is repugnant to it. The right of taxation in the states extends to all subjects over which its sovereign power extends, and no further. The sovereignty of a state extends to every thing which exists by its own authority, or is introduced by its permission; but it does not extend to those means which are employed by congress to carry into execution their constitutional powers. The power of state taxation is to be measured by the extent of state sovereignty, and this leaves to a state the command of all its resources, and the unimpaired power of taxing the people and property of the state. But it places beyond the reach of state power all those powers conferred on the government of the Union, and all those means which are given for the purpose of carrying those powers into execution. This principle relieves from clashing sovereignty; from interfering powers; from a repugnancy between a right in one government to pull down. what there is an acknowledged right in another to build up; from the incompatibility of a right in one government to destroy what there is a right in another to preserve. The power to tax would involve the power to destroy, and the power to destroy might defeat and render useless the power to create. There would be a plain repugnance in conferring on one government the power to control the constitutional measures of another, which other, with respect to those very measures, was declared to be supreme over that which exerts the control. If the right of the states to tax the means employed by the general government did really exist, then the declaration, that the constitution and the laws made in pursu

ance thereof should be the supreme law of the land, would be empty and unmeaning declamation. If the states might tax one instrument employed by the government in the *427 execution of its powers, they might tax *every other instrument. They might tax the mail; they might tax the mint; they might tax the papers of the custom-house; they might tax judicial process; they might tax all the means employed by the government, to an excess which would defeat all the ends of government.

The claim of the states to tax the Bank of the United States was thus denied, and shown to be fallacious; and that there was a manifest repugnancy between the power of Maryland to tax, and the power of congress to preserve the institution of the Branch Bank. A tax on the operations of the bank, was a tax on the operations of an instrument employed by the government of the Union to carry its powers into execution, and was consequently unconstitutional. A case could not be selected from the decisions of the Supreme Court of the United States, superior to this one of M'Culloch and the State of Maryland, for the clear and satisfactory manner in which the supremacy of the laws of the Union have been maintained by the court, and an undue assertion of state power overruled and defeated.

But the court were careful to declare that their decision was to be received with this qualification; that the states were not deprived of any resources of taxation which they originally possessed; and that the restriction did not extend to a tax paid by the real property of the bank, in common with the real property within the state; nor to a tax imposed upon the interest which the citizens of Maryland might hold in that institution, in common with other property of the same description throughout the state.a

The decision pronounced in this case against the validity of

* In Berney v. Tax Collector, 2 Bailey's S. C. Rep. 654, a state tax on dividends arising from stock in the Bank of the United States, owned by a citizen of the state, was adjudged to be constitutional. And in the case of the Union Bank v. The State, 9 Yerger, 490, it was held, that state bank stock, as individual property, might be taxed, when owned by residents of the state; but that the stock held by non-resident stockholders was not subject to the taxing power of the state, for it must be a tax in personam, and stock is a chose in action, and has no locality, and follows the person of the owner.