that the entity, called a State, they were about to create, should have any power of discriminating in respect to the imposition of duties, imposts, and excises in any degree; fully recognizing that the moment a State or government thus discriminates it passes the line of distinction between a free government and one that is not free. It is to be further noted that the words "to pay the debts and provide for the common defense and general welfare of the United States" should also be regarded in the light of a limitation of the purpose for which the taxes, etc. (authorized in the opening words of the section), may be laid and collected. This view was taken and strongly presented by Mr. Jefferson in 1791, shortly after the adoption of the Constitution. He says: "To lay taxes to provide for the general welfare of the United States is to lay taxes for the purpose of providing for the general welfare. For the laying of taxes is the power, and the general welfare the purpose, for which the power is to be exercised. They are not to lay taxes ad libitum for any purpose they please, but only to pay the debts or provide for the welfare of the Union. In like manner they are not to do anything they please to provide for the general welfare, but are to lay taxes for that purpose."—T. Jefferson's Works, p. 557.
Finally, there was added by amendment to the Constitution the following provision, which, although implied in the Magna Charta, had not been previously so explicitly expressed in the Constitution or statutes of any other State: "Nor shall private property he taken for public use without just compensation." Obviously this provision constitutes another limitation on the power of Congress in respect to the taking of private property for public use by taxation or any other method. In a case involving the bearings of this provision on the taxation of a citizen of New Jersey, the Supreme Court of that State analyzed and interpreted its meaning as follows: "A tax upon the person or property of A, B, and C individually, whether designated by name or in any other way, which is in excess of an equal apportionment among the persons or property of the class of persons or kind of property subject to this taxation is, to the extent of such excess, the taking of private property for a public use without compensation. The process is one of confiscation and not of taxation."—36 New Jersey, p. 66, 1872.
It is certain, therefore, that in at least one assemblage for the purpose of creating a State—namely, the Federal Convention—its members clearly recognized the incompatibility of the possession and exercise of an unlimited power of taxation by a State and the coexistence of a free government.
Right of Eminent Domain.—Apart from the right of a State to take private property for its use by taxation, the State
