Morris were strenuous in opposing any limitation on that power, and in this they had the support of General Washington.14 There had, of course, been no similar power in the general government, and we can only learn the mischief sought to be prevented by examining the text of the prohibition itself, and what was said in the debates in the Convention in regard to it. The language used is, as has been pointed out, confined to taxes or duties laid on "Articles exported from any State." The vital objection made to the existence of a power in Congress to tax articles so exported, was that it was "unjust and alarming to the Staple States;" that there were eight northern States with an interest different from the five southern States, and that the "Southern States had, therefore, ground for their suspicions. The case of exports was not the same as that of imports. The latter were the same throughout the States; the former were very different." 15 Mr. Gerry feared that the power would be used to compel the States to comply with the will of the General Government.16 Mr. Butler was strenuously opposed to a power over exports as alarming to the Staple States.17 In other words, the impelling motive was a fear that the power to tax articles exported would be used by the majority to oppress the minority through the laying of export duties on the staples or other articles exported from those States. The purpose, therefore, was to prevent the imposition of a tax or duty on specific articles.

It therefore appears that in the one case, in order to protect the exclusive jurisdiction of Congress over foreign commerce and for other equally compelling reasons, it was necessary to exclude the States from any intermeddling in the matter of exports or imports, and for that purpose the Convention used broad and general language, strengthened by the statement of a single exception, and made absolute in scope by the clause which invested Congress with power to regulate commerce with foreign nations; in the other, it was desired to protect the southern States from discriminating burdens upon "Articles exported" from those States (a "security' which they vehemently demanded) and for that purpose appropriately narrow and specific terms were used, which did no more than prohibit Congress from laying taxes or duties upon the articles themselves.

14

2 THE CONSTITUTIONAL CONVENTION OF 1787 (Hunt's ed.), pp. 213, 216. 15 Id., 215, Col. Butler; see also id., 177. 16 Id., 216. 17 Id., 214.

IV

Fairbank v. The United States, 18 the other authority upon which the Court mainly relied in the Hvoslef case, called in question the validity of schedule A, section 6 of the Act of June 13, 1898, which required a ten-cent revenue stamp to be affixed to every bill of lading or receipt (other than charter parties) for goods, merchandise or effects to be exported from the United States to any foreign port. A bare majority of the Court held this to be in conflict with section 9 of article 1. The portion of the argument of the Solicitor General quoted by Mr. Justice Brewer seems most persuasive:

"To give Congress the power to lay a tax or duty 'on articles exported from any State,' meant to authorize inequality as among the States in the matter of taxation. If the North happened in control in Congress, it might tax the staples of the South; if the South were in power, it might place a duty on the exports of the North. As a part, therefore, of the great compromise between the North and the South, this clause was inserted in the Constitution. The prohibition was applied not to the taxing of the act of exportation or the document evidencing the receipt of goods for export, for these exist with substantial uniformity throughout the country, but to the laying of a tax or duty on the articles exported, for these could not be taxed without discriminating against some States and in favor of others." 19

The answer of the learned Justice, speaking for the majority of the Court, does not seem convincing. He says:

"This argument does not commend itself to our judgment. Its implication is that the sole purpose of this constitutional restriction was to prevent discrimination between the States by imposing an export tax on certain articles which might be a product of only a few of the States, and which should be enforced only so far as necessary to prevent such discrimination. If mere discrimination between the States was all that was contemplated it would seem to follow that an ad valorem tax upon all exports would not be obnoxious to this constitutional prohibition."

It may be helpful to interrupt at this point to say that the argument of the Solicitor General does not appear to be fairly stated by the learned Justice. It was, in effect, that a stamp tax of the kind 19 Id., 292.

18 181 U. S. 290.

under consideration was neither within the letter of the constitutional prohibition nor within its spirit. Mr. Justice Brewer's statement that "if mere discrimination between the States was all that was contemplated it would seem to follow that an ad valorem tax upon all exports would not be obnoxious to this constitutional prohibition," is clearly beside the point, for an ad valorem tax upon all exports would clearly be a tax upon "Articles exported," and therefore within the express prohibition of the clause. If the framers of the Constitution had excepted from the prohibition, ad valorem duties, they would, no doubt, have accomplished the entire object for which the prohibition was framed, but they did not do so. The fact, however, that the framers of the Constitution used language that was more comprehensive than was necessary to avoid the evil sought to be prevented, is most assuredly not an argument in favor of extending the scope of the prohibition beyond the literal meaning of the words.

The opinion of the majority of the Court continues:

"But surely under this limitation Congress can impose an export tax neither on one article of export, nor on all articles of export. In other words, the purpose of the restriction is that exportation, all exportation, shall be free from national burden. This intent, although obvious from the language of the clause itself, is reinforced by the fact that in the constitutional convention Mr. Clymer moved to insert after the word 'duty' the words 'for the purpose of revenue' but the motion was voted down. So it is clear that the framers of the Constitution intended not merely that exports should not be made a source of revenue to the National Government, but that the National Government should put nothing in the way of burden upon such exports.

20

The motion of Mr. Clymer and the action of the Convention when examined, however, show no such intention. Mr. Clymer feared to intrust Congress with power to lay taxes or duties on articles imported for the purpose of raising revenue, and made his motion accordingly.21 If it had come after the main question had

20 181 U. S. 292.

21 "Mr. Clymer remarked that every State might reason with regard to its particular productions, in the same manner as the Southern States. The Middle States may apprehend an oppression of their wheat flour, provisions, etc., and with more reason, as these articles were exposed to a competition in foreign markets not incident to Tobacco, Rice, etc. They may apprehend also combinations against them between the Eastern and Southern States as much as the latter can apprehend them between

been disposed of there might be something in the learned Justice's suggestion, but it was made before any vote upon the main question had been taken, and consequently was opposed alike by those favoring and those opposing the clause. New Hampshire, which opposed any limitation on the power of Congress to tax articles exported, voted against Mr. Clymer's motion, as did Massachusetts, which favored the proposition to allow two-thirds of each house to levy such taxes. Likewise, General Washington and Mr. Madison, who favored giving the Congress full power to tax exports, also voted against Mr. Clymer's motion as something which defeated the purpose they had in view.

In other words, of the eleven States voting, only two favored Mr. Clymer's amendment, while four, with the addition of Washington and Madison, opposed any restriction at all upon the power of Congress to tax articles exported, and five, together with Washington and Madison, voted for the two-thirds amendment. Instead of supporting the position of the majority in the Fairbank case, then, the motion of Mr. Clymer, his remarks thereon, and the action of the Convention all emphasize the fact that nothing more than a tax upon the articles themselves was intended to be prohibited.

It is submitted, therefore, that there is not a word in the clause itself, nor was there a single circumstance connected with the drafting or adoption of it which justifies the expansion of its terms in the manner stated by Mr. Justice Brewer. The majority of the Court in effect, after the lapse of over a hundred years, took it upon themselves to rewrite the terms of the clause, and to place upon the taxing power of the National Government a limitation never expressed and never intended, and not made necessary or proper by the mischief sought to be prevented. They dismiss the matter of the practical construction of the act by saying that before any appeal can be made to practical construction it must appear that the true meaning is doubtful. But obviously practical construction was rightly appealed to by those protesting against an unjustifiable expansion of the language of a constitutional limitation, although obviously that appeal ought not to have been made necessary.

the Eastern and Middle. He moved as a qualification of the power of taxing Exports that it should be restrained to regulations of trade by inserting after the word 'duty' sect. 4, art. VII the words, 'for the purpose of revenue."" 2 CONST. Conv. 1787 (Hunt's ed.), p. 217.

The plain, literal meaning of the prohibition excluded the idea of any restraint upon taxation except taxes or duties levied upon the articles themselves when exported from any State. If a different or wider meaning was to be given to it, it could only be because the nature of the mischief sought to be remedied required a larger meaning, and no such interpretation could be made until every legitimate means had been resorted to in determining the meaning of the provision. In other words, the only theory upon which the conclusion arrived at by the majority of the Court could be sustained, was that the prohibition had a wider scope than was signified by the literal meaning of the words actually used. If you may resort to contemporaneous, practical construction for the purpose of broadening the scope of a provision, a fortiori you may by the same means demonstrate that the words were used and intended to be understood in their ordinary and usual sense. What, then, had been the contemporaneous and practical construction of the clause?

On July 6, 1797, an act was passed which, among other things, provided that, "Any note or bill of lading, for any goods or merchandise to be exported, if from one district to another district of the United States, not being in the same State, ten cents; if to be exported to any foreign port or place, twenty-five cents," etc.22 It is significant that this act was passed within eight years after the Constitution went into effect, and at a time when the framers of the Constitution were an active and dominant element in the councils of the nation; yet no suggestion was made that the tax was a tax "upon Articles exported from any State." However, when three years earlier, a tax on carriages was proposed, it was immediately challenged as unconstitutional by Mr. Madison, then a member of Congress, and the question was raised in court as soon as the law went into effect. Obviously, the tax imposed by the law of 1797 was not challenged, because it was apparent then, as it must be now, that a stamp tax upon foreign bills of lading is neither within the words nor the spirit of the prohibition contained in section 9 of article 1. It must be remembered also that the Act of 1797 was passed at a time when one great party in public life was watchfully jealous of the slightest semblance of usurpation upon the part of the Federal Government, but although the act

22 I U. S. STAT. 527.