slatures of the States and the
Congress," with the final remedy in the hands of the latter.[534]

State Taxing Power and Foreign Commerce

BROWN _v._ MARYLAND; THE ORIGINAL PACKAGE DOCTRINE

The leading case under this heading is Brown _v._ Maryland,[535] decided
in 1827, the issue in which was the validity of a Maryland statute
requiring "all importers of foreign articles or commodities,"
preparatory to selling the same, to take out a license. Holding this act
to be void under both article I, sec. 10, and the commerce clause, the
Court, speaking through Chief Justice Marshall, advanced the following
propositions: (1) that "commerce is intercourse; one of its most
ordinary ingredients is traffic"; (2) that the right to import includes
the right to sell; (3) that a tax on the sale of an article is a tax on
the article itself--a conception of the incidence of taxation which has
at times had important repercussions in other fields of Constitutional
Law; (4) that the taxing power of the State does not extend in any form
to imports from abroad so long as they remain "the property of the
importer, in his warehouse, in the original form or package" in which
they were imported--the famous "original package doctrine"; (5) that
once, however, the importer parts with his importations "or otherwise
mixes them with the general property of the State by breaking up his
packages," the law may treat them as part and parcel of such property;
(6) that even while in the original package imports are subject to the
incidental operation of police measures adopted by the State in good
faith for the protection of the public against apparent dangers. Lastly,
in determining whether a State law amounts to a regulation of commerce
the Court would, Marshall announced, be guided by "substance" and not by
"form"--a proposition which has many times opened the way to extensive
inquiries by the Court into the actualities both of commercial practice
and of State administration.

The decision in Brown _v._ Maryland, but more especially the "original
package doctrine" there laid down, has been sometimes criticised as
going too far. It would have been sufficient, the critics contend, for
the Court to have held the Maryland act void on account of its obviously
discriminatory character; and they urge that original packages receiving
the protection of the State ought to be subject to nondiscriminatory
taxation by it. The criticism was partially anticipat