the court, that the said judgment of the said Supreme Court of the State of Missouri for the first judicial district ought to be reversed and annulled; and the same is hereby reversed and annul led; and the cause remanded to that court, with directions to enter judgment in favor of the defendant to the original action. John Soulard, Widow and others, Appellants vs. The United States. John T. Smith, Appellant vs. The United States. THESE cases came before the Court, on appeals from the District Court of the United States for the district of Missouri. In the District Court of Missouri, the appellants, under the act of Congress of the 26th of May, 1824, instituted proceedings to try the validity of their claims to certain lands in Missouri; the titles to which, they claimed to derive under the former Spanish Government. The District Court gave a decree against the claimants. The cases were argued by Mr Benton, for the appellants, and by Mr Wirt, for the United States. Mr Chief Justice Marshall stated, The court have held the two cases of Soulard and John T. Smith against the United States under advisement. After bestowing upon them the most deliberate attention, we are unable to form judgment which would be satisfactory to ourselves, or which ought to satisfy the public. a In the treaty by which Louisiana was acquired, the United States stipulated that the inhabitants of the ceded country should be protected in the free enjoyment of their property. The United States as a just nation, regard this stipulation as the avowal of a principle which would have been held equally sacred, though it had not been inserted in the contract. The term property' as applied to lands,comprehends every species of title, inchoate or complete. It is supposed to embrace those rights which lie in contract; those which are executory, as well as those which are executed. In this respect the relation of the inhabitants to their government is not changed. The new government takes the place of that which has passed away. In the full confidence that this is the sentiment by which the Government of the United States is animated, and which has been infused into its legislation, the Court have sought sedulously for that information which would enable it to discern the actual rights of the parties; and to distinguish between claims founded on legitimate contracts with those authorized to make them on the part of the crown, or its immediate agents, and such as were entirely dependent on the mere pleasure of those who might be in power; such as might be rejected without giving just cause of imputation against the faith of those in office. The search has been unavailing, When Louisiana was transferred to the United States, very few titles to lands in the upper part of that province especially, were complete. The practice seems to have prevailed for the deputy governor, sometimes the commandant of posts, to place individuals in possession of small tracts, and to protect that possession without further proceeding. Any intrusion on this possession produced a complaint to the immediate supervising officer of the district or post, who inquired into it, and adjusted the dispute. The people seem to have remained contented with this condition. The colonial government, for some time previous to the cession, appears to have been without funds, and to have been in the habit of remunerating services with land instead of money. Many of these concessions remained incomplete. If the duty of deciding on these various titles is transferred by the government to the judicial department, the laws and principles on which they depend ought to be supplied. The edicts of the preceding governments in relation to the ceded territory; the powers given to the governors, whether expressed in their commissions, or in special instruction; and the powers conferred on and exercised by the deputy governors, and other inferior officers, who may have been authorized to allow the inception of title; are all material to a correct decision of the cases now before the court, and which may come before it. We cannot doubt the disposition of the government to furnish this information if it be attainable. We are far from being confident that it is attainable; but have determined to hold the cases which have been argued under advisement until the next term, in the hope that, in the meantime, we may be relieved from the necessity of deciding conjecturally on interests of great importance. The Chief Justice added. Since the determination which has been communi cated had been agreed upon, the Court has been informed that the edicts of August 24th, 1770, is in the office of the Secretary of State. Had that edict been sufficient for the decision of the Court, they would have disposed of the cases at this term. But other information is required, which has been referred to in the opinion. It is therefore considered proper to hold the cases under advisement, The Providence Bank, Plaintiffs in error vs. Alpheus Billings and Thomas G. Pitman. THIS cause came before the Court on a writ of error from the Supreme Judicial Court of Rhode Island and grew out of these circumstances. In 1822, the legislature of Rhode Island passed an act imposing a tax on every bank in the State except the Bank of the United States. The Providence Bank which was chartered in 1791, refused the payment of the tax, alleging that the act which imposed it was repugnant to the Constitution of the United States; as it impaired the obligation of the contract created by the charter of incorporation. The question presented for the consideration of the Court, was the constitutionality of the above act passed in 1822. Mr Whipple appeared for the plaintiff in Error, and Mr Hazzard and Mr Jones, for the defendants. Mr Chief Justice Marshall delivered the opinion of the Court. This is a writ of Error to a judgment rendered in the highest Court for the State of Rhode Island, in an action of trespass brought by the plaintiff in error against the defendant. In November, 1791, the legislature of Rhode Island granted a charter of incorporation to certain individuals, who had associated themselves together for the purpose of forming a banking company. They are incorporated by the name of the President, Directors and Company of the Providence Bank;' and have the ordinary powers which are supposed to be necessary for the usual objects of such associations. In 1822 the legislature of Rhode Island passed an act imposing a duty on licensed persons and others, and bodies corporate within the State;' in which among other things, it is enacted that there shall be paid, for the use of the State, by each and every bank within the State, except the Bank of the United States, the sum of fifty cents on each and every thousand dollars of the capital stock actually paid in.' This tax was afterwards augmented to one dollar and twentyfive cents. The Providence Bank, having determined to resist the payment of this tax, brought an action of trespass against the officers by whom a warrant of distress was issued against and served upon the property of the Bank, in pursuance of the law. The defendants justify the taking set out in the declaration under the act of assembly imposing the tax; to which plea the plaintiffs demur, and assign for cause of demurrer, that the act is repugnant to the Constitution of the United States, inasmuch as it impairs the obligation of the contract created by their charter of incorporation. Judgment was given by the Court of Common Pleas in favor of the defendants; which judgment was on appeal confirmed by the Supreme Judicial Court of the State: that judgment has been brought before this Court by a writ of error. It has been settled that a contract entered into between a State and an individual, is as fully protected by the tenth section of the first article of the Constitution, as a contract between two individuals and it is not denied that a charter incorporating a bank is a contract. Is this contract impaired by taxing the banks of the State? This question is to be answered by the contract itself. It contains no stipulation promising exemption from taxation. The state, then, has made no express contract which has been impaired by the act of which the plaintiffs complain. No words have been found in the charter, which, in themselves, would justify the opinion that the power of taxation was in the view of either of the parties; and that an exemption of it was intended, though not expressed. The plaintiffs find great difficulty in shewing that the charter contains a promise, either express or implied, not to tax the bank. The elaborate and ingenious argument which has been urged, amounts, in substance to this. The charter authorizes the bank to employ its capital in banking transactions, for the benefit of the stockholders. It binds the State to permit these transactions for this object. Any law arresting directly the operations of the bank would violate this obligation, and would come within the prohibition of the Constitution. But, as that cannot be done circuitously which may not be done directly, the charter restrains the State from passing any act which may indirectly destroy the profits of the bank. A power to tax the bank may unquestionably be carried to such an excess as to take all its profits, and still more than its profits for the use of the State; and consequently destroy the institution. Now, whatever be the rule of expediency, may be imposed on may the constitutionality of a measure depends, not on the degree of its exercise, but on its principle. A power therefore which may in effect destroy the charter, is inconsistent with it; and is impliedly renounced by granting it. Such a power cannot be exercised without impairing the obligation of the contract. relinquish it; that a consideration sufficiently valuable to induce a partial release of it may not exist: but as the whole community is interested in retaining it undiminished, that community has a right to insist that its abandonment ought not to be presumed, in a case in which the deliberate purpose of the State to abandon it does not appear. When pushed to its extreme point, or exercised in moderation, it is the same power, and is hostile to the rights granted by the charter. This is substantially the argument for the Bank. The plaintiffs cite and rely on several sentiments expressed on various occasions by this court, in support of these positions. The claim of the Providence Bank is certainly of the first impression. The power of taxing moneyed corporations has been frequently exercised; and has never before, so far as it is known, been resisted Its novelty, however, furnishes no conclusive argument against it. That the taxing power is of vital importance : that it is essential to the existence of government; are truths which it cannot be necessary to reaffirm. They are acknowledged and asserted by all. would seem that the relinquishment of such a power is never to be assumed. It' We will not say that a state may not The plaintiffs would give to this charter the same construction as if it contained a clause exempting the bank from taxation on its stock in trade. But can it be supposed that such a clause would not enlarge its privileges? They contend that it must be implied; because the power to tax may be so wielded as to defeat the purpose for which the charter was granted. And may not this be said with equal truth of other legislative powers? Does it not apply with equal force to every incorporated company? A company may be incorporated for the purpose of trading in goods as well as trading in money. If the policy of the State should lead to the imposition of a tax on unincorporated companies, could those which might be incorporated claim an exemption, in virtue of a charter which does not indicate such an intention? The time may come when a duty manufactures. Would an incorporated company be exempted from this duty, as the mere consequence of its charter? The great object of an incorporation is to bestow the character and property of individuality on a collective and changing body of men. This capacity is always given to such a body. Any privileges which may exempt it from the burthens common to individuals, do not flow necessarily from the charter, but must be expressed in it, or they do not exist. If the power of taxation is inconsistent with the charter, because it may be so exercised as to destroy the object for which the charter is given; it is equally inconsistent with every other charter, because it is equally capable of working the destruction of the objects for which every other charter is given. If the grant of a power to trade in money to a given amount, implies an exemption of the stock in trade from taxation, because the tax may absorb all the profits; then the grant of any other thing implies the same exemption; for that thing may be taxed to an extent, which will render it totally unprofitable to the grantee. Land, for example, has, in many, perhaps in all the States, been granted by government since the adoption of the Constitution. This grant is a contract, the object of which is that the profits issuing from it shall enure to the benefit of the grantee. Yet the power of taxation may be carried so far as to absorb these profits. Does this impair the obligation of the contract? This idea is rejected by all; and the proposition appears so extravagant, that it is difficult to admit any resemblance in the cases. And yet if the proposition for which the plaintiffs contend be true, it carries us to this point. That proposition is, that a power which is in itself capable of being exerted to the total destruction of the grant, is inconsistent with the grant, and is therefore impliedly relinquished by the grantor, though the language of the instrument contains no allusion to the subject. If this be an abstract truth, it may be supposed universal. But it is not universal, and therefore its truth cannot be admitted, in these broad terms, in any case. We must look for the exemption in the language of the instrument; and if we do not find it there, it would be going very far to insert it by construction. The power of legislation, and consequently of taxation, operates on all the persons and property belonging to the body politic. This is an original principle, which has its foundation in society itself. It is granted by all for the benefit of all. It resides in government as a part of itself, and need not be reserved when property of any description, or the right to use it in any manner, is granted to individuals or corporate bodies. However absolute the right of an individual may be, it is still in the nature of that right, that it must bear a portion of the public burthens; and that portion must be determined by the legislature. This vital power may be abused; but the Constitution of the United States was not intended to furnish the corrective for every abuse of power which may be committed by the state governments. The interest, wisdom and justice of the representative body, and its relations with its constituents, furnish the only security, where there is no express contract, against unjust and oppressive taxation, as well as against unwise legislation generally. This principle was laid down in the case of McCullough vs. The State of Maryland, and in Osborn et al vs. The bank of the United States. Both those cases, we think, proceeded on the admission that an incorporated bank, unless its charter shall express the exemption, is no more exempted from The case of Fletcher vs. Peck has been cited; but in that case the Legislature of Georgia passed an act to annul its grant. The case of the State of New Jersey vs. Wilson has been also mentioned; but in that case the stipulation exempting the land from taxation, was made in express words. The reasoning of the Court in the case of McCullough vs. The State of Maryland has been applied to this case, but the court itself appears to have provided against this application. Its opinion in that case, as well as in Osborn et al. vs. The bank of the United States, was founded, expressly, on the supremacy of the laws of Congress, and the necessary consequence of that supremacy to exempt its instruments employed in the execution of its powers, from the operation of any interfering power whatever. In reasoning on the argument that the power of taxation was not confined to the people and property of a state, but might be exercised on every object brought within its jurisdiction, this court admitted the tenth of the proposition; and added, that the power was an incident of sovereignty, and was co-extensive with that to which it was an incident. All powers, the court said, over which the sovereign power of a State extends, are subjects to taxation. The sovereignty of a state extends to everything which exists by its own authority, or is introduced by its permission; but does it extend to those means which are employed by Congress to carry into execution powers conferred on that body by the people of the United States? We think not. 6 So in the case of Osborn vs. The Bank of the United States, the Court said, 'the argument' in favor of the right of the State to tax the bank, supposes the corporation to have been originated for the management of an individual concern, to be founded upon contract between individuals, having private trade and private profit for its great end and principal object. If these premises were true, the conclusion drawn from them would be inevitable. This mere private corporation, engaged in its own business, would certainly be subject to the taxing power of the State as any individual would be. The Court was certainly not discussing the question whether a tax imposed by a State on a bank chartered by itself, impaired the obligation of its contract: and these opinions are not conclusive as they would be had they been delivered in such a case, but they show that the question was not concluded as doubtful, and that inferences drawn from general expressions pointed to a different subject cannot be correctly drawn. We have reflected seriously on this case, and are of opinion that the act of the Legislature of Rhode Island, passed in 1822, imposing a duty on licensed persons and others, and bodies corporate within the State, does not impair the obligation of the contract created by the charter granted to the plaintiffs in error. It is therefore the opinion of this court, that there is no error in the judgment of the Supreme Judicial Court for the State of Rhode Island, affirming the judgment of the Circuit Court in this case; and the same is affirmed; and the cause is remanded to the said Supreme Judicial Court, that its judgment may be finally entered. |