This seemingly miraculous alteration of public opinion, manifesting itself within one year from the violent outbursts of popular wrath against Marshall and the National Judiciary, was the result of the steady influence of the conservatives, unwearyingly active for a quarter of a century; of the natural reaction against extravagance of language and conduct shown by the radicals during that time; of the realization that the Supreme Court could be resisted only by force continuously exercised; and, above all, of the fundamental soundness and essential justness of Marshall's opinions, which, in spite of the local and transient hardship they inflicted, in the end appealed to the good sense and conscience of the average man. Undoubtedly, too, the character of the Chief Justice, which the Nation had come to appreciate, was a powerful element in bringing about the alteration in the popular concept of the Supreme Court.
But, notwithstanding the apparent diminution of animosity toward the Chief Justice and the National Judiciary, hatred of both continued, and within a few years showed itself with greater violence than ever. How Marshall met this recrudescence of Localism is the story of his closing years.
When, in Gibbons vs. Ogden, Marshall established the supremacy of Congress over commerce among the States, he also announced the absolute power of the National Legislature to control trade with foreign nations. It was not long before an opportunity was afforded him to apply this principle, and to supplement his first great opinion on the meaning of the commerce clause, by another pronouncement of equal power and dignity. By acts of the Maryland Legislature importers or wholesalers of imported goods were required to take out licenses, costing fifty dollars each, before they could sell "by wholesale, bale or package, hogshead, barrel, or tierce." Non-observance of this requirement subjected the offender to a fine of one hundred dollars and forfeiture of the amount of the tax.[1258]
Under this law Alexander Brown and his partners, George, John, and James Brown, were indicted in the City Court of Baltimore for having sold a package of foreign dry goods without a license. Judgment against the merchants was rendered; and this was affirmed by the Court of Appeals. The case was then taken to the Supreme Court on a writ of error and argued for Brown & Co. by William Wirt and Jonathan Meredith, and for Maryland by Roger Brooke Taney[1259] and Reverdy Johnson.[1260]
On March 12, 1827, the Chief Justice delivered the opinion of the majority of the court, Justice Thompson dissenting. The only question, says Marshall, is whether a State can constitutionally require an importer to take out a license "before he shall be permitted to sell a bale or package" of imported goods.[1261] The Constitution prohibits any State from laying imposts or duties on imports or exports, except what may be "absolutely necessary for executing its inspection laws." The Maryland act clearly falls within this prohibition: "A duty on imports ... is not merely a duty on the act of importation, but is a duty on the thing imported....
"There is no difference," continues Marshall, "between a power to prohibit the sale of an article and a power to prohibit its introduction into the country.... No goods would be imported if none could be sold." The power which can levy a small tax can impose a great one—can, in fact, prohibit the thing taxed: "Questions of power do not depend on the degree to which it may be exercised."[1262] He admits that "there must be a point of time when the prohibition [of States to tax imports] ceases and the power of the State to tax commences"; but "this point of time is [not] the instant that the articles enter the country."[1263]
Here Marshall becomes wisely cautious. The power of the States to tax and the "restriction" on that power, "though quite distinguishable when they do not approach each other, may yet, like the intervening colors between white and black, approach so nearly as to perplex the understanding, as colors perplex the vision in marking the distinction between them. Yet the distinction exists, and must be marked as cases arise. Till they do arise, it might be premature to state any rule as being universal in its application. It is sufficient for the present, to say, generally, that, when the importer has so acted upon the thing imported that it has become incorporated and mixed up with the mass of property in the country, it has, perhaps, lost its distinctive character as an import, and has become subject to the taxing power of the State; but while remaining the property of the importer, in his warehouse, in the original form or package in which it was imported, a tax upon it is too plainly a duty on imports to escape the prohibition in the constitution."[1264]
It is not true that under the rule just stated, the State is precluded from regulating its internal trade and from protecting the health or morals of its citizens. The Constitutional inhibition against State taxation of imports applies only to "the form in which it was imported." When the importer sells his goods "the [State] law may treat them as it finds them." Measures may also be taken by the State concerning dangerous substances like gunpowder or "infectious or unsound articles"—such measures are within the "police power, which unquestionably remains, and ought to remain, with the States." But State taxation of imported articles in their original form is a violation of the clause of the Constitution forbidding States to lay any imposts or duties on imports and exports.[1265]
Such taxation also violates the commerce clause. Marshall once more outlines the reasons for inserting that provision into the Constitution, cites his opinion in Gibbons vs. Ogden, and again declares that the power of Congress to regulate commerce "is co-extensive with the subject on which it acts and cannot be stopped at the external boundary of a State, but must enter its interior." This power, therefore, "must be capable of authorizing the sale of those articles which it introduces." In almost the same words already used, the Chief Justice reiterates that goods would not be imported if they could not be sold. "Congress has a right, not only to authorize importation, but to authorize the importer to sell." A tariff law "offers the privilege [of importation] for sale at a fixed price to every person who chooses to become a purchaser." By paying the duty the importer makes a contract with the National Government—"he ... purchase the privilege to sell."
"The conclusion, that the right to sell is connected with the law permitting importation, as an inseparable incident, is inevitable." To deny that right "would break up commerce." The power of a State "to tax its own citizens, or their property within its territory," is "acknowledged" and is "sacred"; but it cannot be exercised "so as to obstruct or defeat the power [of Congress] to regulate commerce." When State laws conflict with National statutes, "that which is not supreme must yield to that which is supreme"—a "great and universal truth ... inseparable from the nature of things," which "the constitution has applied ... to the often interfering powers of the general and State governments, as a vital principle of perpetual operation."