Page:Joseph Story, Commentaries on the Constitution of the United States (1st ed, 1833, vol II).djvu/489

 CH. XIV.] § 1021. The constitutional prohibition on the states to lay a duty on imports, a prohibition, which a vast majority of them must feel an interest in preserving, may certainly come in conflict with their acknowledged power to tax persons and property within their territory. The power, and the restriction on it, 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 the 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.

§ 1022. The counsel for the plaintiffs in error contend, that the importer purchases, by payment of the duty to the United States, a right to dispose of his merchandise, as well as to bring it into the country; and certainly the argument is supported by strong reason, as well as by the practice of nations, including our own. The object of importation is sale; it constitutes the motive for paying the duties; and if the United States possess the power of conferring the right to sell, as the consideration, for which the duty is paid, 61