"The same court also held to similar conclusions in a number of other cases. Thus, in the case of Pelham vs. Rose, 9 Wall., 103, a note, the evidence of the credit, not the credit itself, was the thing proceeded against. In the case of Pelham vs. Way, 15 Wall., 196, where the court also held that the proceedings, not having been against either the debt or credit, but only against the material evidence of it, and that material evidence having been out of the marshal's jurisdiction, no confiscation had been effected.
"Now, if these decisions," said Judge Foster to his colleagues in the Court of Errors, "are to be recognized as law, how can it be claimed that on this credit, given by Kirtland to Cummings in the State of Illinois, secured by a deed of real estate there situate, held by a trustee resident there, the debtor being domiciled there, the debt made payable there, the laws of Illinois by express agreement to govern the contract; how (for the question bears repeating) can it be claimed that there is any subject-matter within the jurisdiction of Connecticut on which to impose a tax?
"That the land in Illinois which is the security for this debt, and of which this debt is the representative, has borne its full share of taxes without diminution on account of this debt is not denied. If the land were in Connecticut, this would suffice; no tax could be collected on the debt. That the land is in Illinois can not affect the principle. If each State has dominion over the property, real and personal, within its territory for the purposes of taxation—and he must be a bold man who denies it—that dominion must, from its nature, be exclusive. No other State can have concurrent jurisdiction. Nor does any other State become invested with the power to tax, if the State in which the power is vested omits to exercise that power. Should a State exempt the property, real or personal, within its limits, belonging to non-residents, from taxation, by what authority could any foreign State impose taxes on such property? The question is purely jurisdictional, and the matter of double taxation is not involved. The point is not whether the State may tax a thing
Kennedy, one of the obligors and mortgagors, to pay the debt into the court, for the use of the United States; and in pursuance of the decree the payment was made to the officers of the court. After the termination of the war, or in 1868, Brown, the obligee and mortgagee in this bond and mortgage, having obtained a pardon from the President of the United States, filed a bill in the United States Circuit Court for the district of Kansas against Kennedy and wife, for the foreclosure of this mortgage. The principal defense was, that the mortgage and the debt secured by it had been confiscated under the act of Congress. That, of course, put in issue the validity of those proceedings. It was admitted as matter of fact and agreed, that Brown, the complainant, was and always had been a resident of Virginia, had been a continuous resident of the State from June, 1860, to September, 1865, and neither the bond nor mortgage in question was during any part of that time in the district of Kansas.
