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consequently extends to all places over which the sphere of action, and is not dependent upon the government extends. 3

States for the execution of the powers assigned to The provisions of the Constitution upon the sub- it. It follows, therefore, that a State cannot imject follow:

pose a tax upon an agency of the national govern1. Congress shall have power to lay and collect ment so as to impair its efficiency,' nor can it tax taxes, duties, imposts and excises to pay the debts the securities 10 or property of the United States. and provide for the common defense and general On the other hand, there is the corresponding limiwelfare of the United States; but all duties, imposts tation upon the power of the United States which and excises shall be uniform throughout the United makes it an abuse of the power of taxation if that States.

power be so exercised as to impair the separate ex2. No capitation or other direct tax shall be laid istence and independent self-government of the unless in proportion to the census or enumeration States." ?? hereinbefore directed to be taken.5

But while there are only these two limitations 3. No tax or duty shall be laid on articles ex- upon the taxing power of the United States, there ported from any State. No preference shall be are certain directions, or rules, as to the mode of given, by any regulation of commerce or revenue, exercising the power. These rules are, that “all to the ports of one State over those of another; nor duties, imposts and excises shall be uniform throughshall vessels bound to or from one State be obliged out the United States," and that capitation and to enter, clear or pay duties in another.6

other direct taxes “shall be apportioned among the 4. Representatives and direct taxes shall be appor- several States according to their respective numtioned among the several States which may be in- bers." These directions as to the mode of exerciscluded within this Union, according to their respec- ing the power are not strictly limitations of the tive numbers, which shall be determined by adding power. " It still extends to every object of taxation to the whole number of free persons, including except exports, and may be applied to every object of those bound to service for a term of years, and ex- taxation to which it extends, in such measure as cluding Indians not taxed, three-fifths of all other Congress may determine."13 It is at once apparent persons."

that for the purposes of applying these rules, the The words used in giving the power of taxation taxes levied by the United States are divided into to the national government describe the whole two classes, power, and it was the intention of the convention

The first class comprises duties, im posts and exthat the whole power should be conferred; and cises; the second, capitation and other direct taxes. that both persons and property should be subject to The former must be laid by the rule of uniformity; taxation. · And nothing is clearer," said Mr.

the latter, by the rule of apportionment. It will be Chief Justice Chase, in a celebrated case, “from

seen, also, that in the directions for laying duties the discussions in the convention and the discuss and excises they must be “uniform throughout the sions which preceded final ratification by the neces

United States," while direct taxes need to be apsary number of States, than the purpose to give portioned only “ among the several States which shall this power to Congress, as to the taxation of every- be included within the Union.” These terms are thing except exports, in its fullest extent. ?98 The only express limitation, then, upon the taxing power of 9 McColloch v. Maryland, 4 Wheat. 316; Osborn the national government is that which forbids it to v. Bank of U. S., 9 Wheat. 738. lay duties upon exports. There are, however, cer- Society for Savings v. Coite, 6 Wall. 594 ; Paltain implied limitations upon that power which mer v. McMahon, 133 U. S. 660; Home Ins. Co. v. arise from the nature and organization of the gov. Taxes, 2 Black. 620; Bank Tax Case, 2 Wall. 200;

New York, 134 id. 594; New York v. Comrs. of ernment itself. Both the nation and the States ex

Provident Inst. v. Massachusetts, 6 id. 611; Weston isted before the adoption of the Constitution. The

v. Charleston, 2 Peter. 449; Mitchell v. Leavenpurpose of the Constitution was not

destroy worth Co., 91 U. S. 206; New York v. Hoffman, 7 either, but to preserve both; for both are essential Wall. 16; First Nat. Bank of Louisville v. Kentucky, to the preservation of our form of government. 9 id. 353. Thus, while the government of the Union is limited 11 McGoon v. Scales, 9 Wall. 23; Kas. Pac. R. R. in the scope of its powers, it is supreme within its Co. v. Prescott, 16 id. 603; Tucker v. Ferguson,

22 id. 527; Union Pacific R. R. Co. v. McShane, Loughborough v. Blake, 5 Wheat. 317.

22 id. 444; North Pac. R. R. Co. v. Traill Co., * Art. I, § 8, cl. 1.

115 U. S. 600; Van Brocklin v. Tennessee, 117 id. Art. I, § 9, cl. 4.

151; Wisconsin Cent. Ry. Co. v. Price Co., 133 U. • Art. I, § 9, cl, 5.

S. 496. 7 Art. I, § 2, cl. 3.

County of Lane v. Oregon, 7 Wall. 71. * Veazie Bank v. Fenno, 8 Wall. 553.

13 Veazie Bank v. Fenno, 8 Wall. 553.

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not identical. “The United States” includes the viz., capitation or poll taxes and taxes upou land Territories as well as the States, and the clause re- and its improvements. The great writer in the quires uniformity throughout the whole national Federalist, in discussing the question of taxation, domain. But the “several States which are in- says that direct taxes principally relate to lands and cluded within the Union” do not include the Ter- buildings, and may admit of a rule of apportionritories, and the requirements of this rule are satis ment, and that either the value of the land or the fied without extending direct taxes to the Territo- number of people may serve as a standard.16 The ries or the District of Columbia. But if they are

same writer says again, in speaking of internal extended to these places they must be apportioned

taxes, that they are divided “into those of the

direct and those of the indirect kind." In connecthere as in the States. !4

tion with this he discusses land taxes and poll The question as to what is a direct tax is one ex

taxes, but mentions no other direct tax. Then, clusively in American jurisprudence, and in determining it we can obtain little assistance from the

too, the practice of the legislative department

of the national government has been uniformly in conclusions of modern political economists. It is of the nature of an historical question, and to de- accordance with this from the first; and Congress

has in every instance laid all taxes, with the two excide it we must determine what the Constitutional

ceptions named, according to the rule of uniformity. Convention understood by the term. When that

Direct taxes have been laid five times since the convention met, the science of political economy

adoption of the Constitution:- in 1798, 18 in 1813, 19 bad not yet put off its swaddling clothes. The first

in 1815,20 in 1816 ?) and in 1861." The first of these really great work upon the subject, in English,

imposed a tax upon real estate, and a capitation tax Smith's “Wealth of Nations," had appeared but

upon slaves. The last was a tax upon real estate eleven years before, wbile Malthus's “ Essay on

exclusively. Each of the other acts imposed a tax Population ” did not appear until 1798 — eleven

upon real estate and slaves, the tax being required The classifications of modern political

to be levied upon both land and slaves according economists have been made since the Constitution

to their respective values. The fact that slaves itself, and have little weight in determining the

were taxed both by capitation tax and according to question.

their value, has led some persons to the opinion It will be remembered that the Congress un

that the practice of Congress has not been uniform der the Confederation was required to apportion in respect to this, and the opinion has been extaxes among the States in proportion to the land pressed that Congress regarded a tax on personal and improvements thereon.15 This, a land tax, was

property as a direct tax. A writer has said, regarded as a direct tax, and was so understood by - There is no other way of reaching a distincthe members of the convention. When, after con

tion between a specific tax on a carriage and an siderable discussion, it was at last agreed that rep- ad valorem tax on a slave, except to follow it into resentatives should be “apportioned among the sev

the class of assessment on what is being consumed, eral States according to their respective numbers,” ) and connect it with the idea of expense."

But it was agreed as a part of this compromise that this does not follow. The slave occupied a peculiar these taxes, or direct taxes, should be apportioned

position. He partook of the nature of both person in the same way. And as the only fair way of lay- and property. As a person he was counted in the ing a poll tax is in proportion to numbers, the term population to determine the basis of representation; “capitation tax” was added to the directory clause, but, being also property, he was not counted in the and it became

same proportion as his white brother. Partaking “No capitation or other direct tax shall be laid of this dual nature he was liable to a capitation tax unless in proportion to the census or enumeration as a person and to an ad valorem tux as property. hereinbefore directed to be taken.”

The tax upon him as property partook of the nature The original resolution, as.offered by Gouverneur of a land tax, for in many of the southern States the Morris, having in mind the taxes already existing, used simply the term “taxes." This was amended 16 The Federalist, No. XXI, by Hamilton. by prefixing the word “direct," and thus we find 17 The Federalist, No. XXXVI. it in clause 3, section 2, Article I. Afterward the

18 1 Stat. at Large, 597. term “capitation tax” was inserted, as in clause 4,

19 3 Stat. at Large, 53. section 9, of the same article. It is evident, then,

20 3 Stat. at Large, 107. that the convention recognized two direct taxes,

31 3 Stat. at Large, 255.

12 12 Stat. at. Large, 294. "* Loughborough v. Blake, 5 Wheat. 317.

23 Geo. Ticknor Curtis in Harper's Magazine, Aug. 15 Springer v. United States, 102 U. S. 586.

1866.

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slave partook of the nature of realty, 24 and passed But it is to be remarked that the constitutional to the heir rather than to the adıninistrator.25 direction requires uniformity, not equality. A tax

Not only do the action of the Constitutional Con- is uniform when its rates and provisions are the same vention and the practice of Congress agree upon throughout the entire United States; it is equal this matter, but the decisions of the Supreme Court when the same rate applies to all the subjects upon of the United States also support the same view. which it is or may be laid. A tax may be uniform In 1794, Congress, whose members had largely com- and yet exempt certain articles or classes of articles posed the convention of 1787, passed an act laying from taxation, or apply to different articles at difa tax upon carriages according to the rule of uni- ferent rates, provided, that no exemption shall be formity. Its collection was resisted on the ground made in one State or section which shall not exthat it was a direct tax and should bave been ap- tend to all other States and sections, and the same portioned. The case was argued on behalf of the rates upon the same articles shall be in force everyUnited States by General Hamilton, who was, with-where. In short, the constitutional rule for laying out doubt, the greatest constitutional lawyer of his duties, imposts and excises, means simply this, – age. Of the six judges of the Supreme Court at the that these taxes shall be laid by a general law time, four - Ellseworth, Wilson, Patterson, and which shall be in force throughout the entire terriChase-had been prominent members of the Con- torial extent of the United States; and that they stitutional Convention, while another, Iredel, had shall not be laid by special laws applicable to differbeen a member of the ratifiying convention of North ent localities. A tax is uniform, within the meanCarolina. In this case all the judges who took part ing of the constitutional provision on that subject, in the decision were unanimously of the opinion when it operates with the same effect in all places that a tax on carriages was not a direct tax, but a

where the subject is found ; and it is not wanting duty or excise, and being laid according to the rule in such uniformity, because the thing taxed is not of uniformity, was constitutional. And the opinion equally distributed in all parts of the United States.23 was expressed by the court that the only direct taxes The fact that a tax bears heavily upon a corporain the constitutional sense are poll taxes and taxestion, or class of corporations, is not ground for deupon land, and its improvements. This opinion claring it unconstitutional, 33 and Congress may dishas since been repeatedly affirmed by the Supreme criminate in favor of a class, as it has done in the Court, aacquiesced in by the ablest writers on con

act taxing the circulation of State banks. The titutional law, and can no longer be questioned. power of Congress to discriminate in laying an inThus in the sense of the Constitution an income tax

come tax is just as great as is its power to discrimiis not a direct tax but a duty or excise ;28 and this

nate in laying customs, for both must be laid accordis true whether the tax be levied upon the income ing to the same rule. The income tax act of 1864 of an individual”' or that of a corporation;

exempted incomes to the extent of $600, and what can the constitutional power of Congress to lay such

was annually paid for rent or repairs to residence; taxes be doubted. 31

and laid the tax at different rates. Five per cent Since an income tax is a duty or excise, it must be uniform throughout the United States, and any not in excess of $10,000.

per annum was levied on incomes above $5,000 and

The seven States of such tax which is not uniform is necessarily invalid.

Massachusetts, New York, New Jersey, Pennsyl2+ Chinn v.

vania, Ohio, Illinois and California paid threeRespass, 1 T. B. Mon. 25; Thomas v. Tanner, 6 id. 52; Wells v. Bowling, 2 Dana, 41;

fourths of this tax, yet they had only about onePlumpton v. Cook, 2 Marsh. 451; Copley v. San- tifth of the population of the United States, and ford, 2 La. An. 335; Sneed v. Ewing, 5 J. J. Mar- about the same proportion of the assessed property. shall, 460.

Yet after the fiercest contests this act was repeatHogan v. Bell, 4 Stew. & P. (Ala.) 286; Gray v. edly sustained by the courts. Suffold, 5 Ark. 637; Rogers v. Farrar, 6 T. B. Mon.

But, as has already been said, the national govern421; Justices v. Lee, 1 id. 247; Ratcliff v. Ratcliff, 12 Smed. & M. 134; Read v. Manning, 30 Miss. 308;

ment cannot exert the taxing power so as to impair Wright v. Lowe, 2 Murph. 354.

the separate existence and independent self-govern26 Hylton v. United States, 3 Dall. 171.

ment of the several States; and, as a municipal cor2. Veazie Bank v. Fenno, 8 Wall. 533; Springer | poration is an agent of the State and is a portion of v. United States, 102 U. S. 586 ; Pacific Insurance the governmental power, it follows that Congress Co. v. Soule, 7 Wall. 433.

cannot tax the income of a municipality; and where 24 William M. Springer v. U. S., 102 U. S. 586; a municipal corporation held a mortgage upon the Pacific Ins. Co. v. Soule, 7 Wall. 433. ** Springer v. United States, 102 U. S. 586.

Edge v. Robertson, 112 U. S. 580. 30 Pacific Insurance Co. v. Soule, 7 Wall. 433. 33 Veazie Bank v. Fenno, 8 Wall. 553.

31 United States v. Balt, & Ohio R. R. Co., 17 34 United States v. Balt. & Ohio R. R. Co., 17 Wall. 322.

Wall. 322.

30

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property of a railroad company, and the mortgagor by payment. But where payment was not made, was required to deduct from the interest due the and the land was sold to pay the tax, and the surmortgagee each year a tax thereon and pay the same plus arising from the sale was deposited in the to the government, such tax was held to be a tax treasury, the owner has no right of action against upon the income of the city and void.34

the United States prior to his application therefor, For the same reason Congress cannot impose a tax and the statute of limitation runs only from the upon the salary of a judicial officer of a State, which date of such application. His sale of his right of is paid out of the State treasury; 35 nor can it tax redemption does not affect his right to recover such the processes issuing out of State courts," nor a surplus. 44 railroad owned by a State.37 But where Congress The Internal Revenue Acts of the United States, imposed upon every national banking association, relating to licenses for selling liquors, etc., do not State bank or banker or association, a tax of ten authorize the licensee to carry on the licensed busiper cent of the amount of notes of any town, city or ness within a State, but are only a mode of imposmunicipal corporation paid out by them, it was held ing taxes upon the licensed business, with provisions to be not a tax upon the obligation, but upon its for enforcing payment of such taxes. These proviuse in a particular way, that is, as a circulating sions are not contrary to the Constitution nor to medium, and therefore, valid. And the fact that public policy. 45 Congress intended to destroy the use does not alter

JAMES J. HAMILTON.

SCRANTON, Pa. the case; for Congress has this power. 38

The capital of a State bank invested in 'foreign countries can be taxed by the United States;

THE FAILURE OF JUSTICE where an alien takes a devise he cannot set up his

THE universal disgust which pervades this counalienage as a ground of recovering back the succes

try at the manner in which the criminal law is sion tax paid by him under the act of June 30, 1864, administered is beginning to take form, and the which laid a tax upon the devolution or disposition better elements of society are just beginning to asof real property by deed, will or descent. Such a

sert themselves, although the prospects for an imtax, however, is neither a tax on land nor a capita- mediate change in matters appears to be somewhat tion tax. It is not a direct tax within the meaning discouraging. of the Constitution, but is an excise. 40

At the recent municipal election in San Francisco It has been held that the act of Congress of Au- a large number of the best citizens signed a manigust 3, 1882, to regulate immigration, which im- festo in which the charge was made that justice was poses upon the owners of vessels who shall bring constantly defeated in their courts, owing to the passengers from a foreign port into the United technicalities and quibbles indulged in by the States a duty of fifty cents for each such passenger judges; that the public rights were habitually ignot a citizen of this country, is a valid exercise of nored; that everything was ruled against the State, the power to regulate commerce with foreign na- and that criminals seemed to be better treated than tions, and the tax laid by the act complies with the honest men, or words to that effect. A similar conconstitutional requirement of uniformity.41

dition of things exists to-day in many of the westThe direct tax laid by act of Congress of Augustern States, notably in Missouri, Iowa and Illinois. 5, 1861, did not create any liability on the part of The administration of the criminal law in Illinois the States in which the lands taxed were situated is perhaps the most vicious and unfair toward the to pay the tax.? But the assessment of this tax public of any that ever has enabled rogues to escape under section 4 of the act of June 7, 1862, for the justice. It is not the fault of trial judges. The collection of taxes in insurrectionary districts, cre- situation in which unwise and stupid legislation has ated a lien on the land which might be discharged placed them is the most pusillanimous and degrad

ing that ever a judicial officer has occupied. In35 Buffington v. Day, 1 Wall. 113.

deed, it seems to be the fixed policy of this Com36 Warren v. Paul, 22 Ind. 276; Union Bank v.

monwealth, as indicated both by the General AsHill, 3 Cold. 325; Moore v. Quick, 105 Mass. 49.

sembly and the Supreme Court, to treat nisi prius 31 Georgia v. Atkins, 1 Abb. (U. S.) 22.

judges as incapable of discharging their duties prop38 Merchants' National Bank of Little Rock v.

erly, and to degrade them to the character of a United States, 111 U. S. 1.

moderator of a town meeting. Proceeding on the 39 Nevada Bank of San Francisco v. Sedgwick, notion that a trial by jury means a trial by twelve 14 Otto, 101. Scholey v. Rew, 23 Wall. 331.

43 Bennett v. Hunter, 9 Wall. 326. 41 Edge v. Robertson, 112 U. S. 580.

44 United States v. Cooper, 120 U. S. 124. 47 United States v. Louisiana, 123 U. S. 32.

45 License Tax Cases, 5 Wall. 462.

40

men alone, with the judge left out, statutes have plies a distrust of the capacity of the judge to deal been passed which utterly deprive judges of all with the evidence in summing up, and overlooks power to promote justice or to do anything to en- the need on the part of the jury of intelligent judilighten the jury on any question the decision or cial instructions and guidance. The remedy is not elucidation of which pertains to the judicial func- in the life of these statutes, which are based on the tion.

assumed continued existence of the cause of such At the common law a judge always assists the statutes, but the true remedy is to remove the cause jury to arrive at a correct conclusion by summing by securing judges who are competent to the full up the evidence, explaining the case and the issues discharge of the high and delicate duties of the juinvolved, and by grouping together the main facts dicial office. Under the practice required by these and analyzing them, and stating what is essential statutes mistaken verdicts are greatly multiplied, and what is not essential. In this way the under and it is to such causes that the trial by jury has standing of the jury is both quickened and enlight- declined to such an extent that it has come in many ened, and if they possess the average brains of an cases to be in avowed maxim of professional action American citizen their conclusions will not be far that a good cause is for the court; a bad or doubtout of the way, if they are not absolutely correct. ful cause is for the jury." But hy our statutes the judge is forbidden to open We do not believe that this system should be any his mouth or say a word to a jury without subject- longer continued. The ardministration of the crimiing himself to criticism or having some astute coun

nal law, rightly understood, is one of the highest sel interpose an objection. He is forbidden to ex

functions ever conferred on mortals. And those plain to the jury the nature of the action or to

who take part in it should be held responsible to charge on the facts or to sum up the evidence. He society for the manner in which they discharge is forbidden to express any opinion on the value of \'their duties, whether judge, jury, counsel or advotestimony or to indicate in the remotest manner cate. what the salient points of the case are, and is ex- A trial in this country for the commission of a pressly required to confine his charge to reading crime ought to be something else besides a forensic written instructions that often amount to nothing combat between opposing counsel, where either more nor less than so many conundrums, and pro- party is privileged to conceal the truth and trick his duce on the mind of the average juror nothing but adversary. It is a solemn proceeding, instituted and confusion and disgust.

carried on by the sovereign power of the State at There are not many States where such a practice public expense and inconvenience for the redress of prevails, but Iilinois stands in the front rank of grievances, the ascertaining of truth and the doing those that undertake to administer the law through of justice. Such a proceeding should be characterthe instrumentality of judges that are deprived of ized by the utmost fairness, and the absolute truth their most important functions. If we are to expect and justice of the matter should be the end and aim satisfactory verdicts, the presiding judge must have of all concerned in the same. power to make the way of the jury plain and clear. If a person accused of crime is justified in standThis can never be done as long as we restrict a ing on all of his rights, and waiving none of them, judge to simply reading instructions, drawn by op- then let it be remembered that society has rights as posing attorneys, which are so inconsistent in their well as those who violate its laws, and that in upnature as to slap each other in the face with every holding the rights of the criminai, the rights of sentence.

honest men ought not to be forgotten or disreJudge Dillon, a jurist of national reputation, who garded. What society demands in every case where spent twenty years on the bench, and more than a person is charged with the commission of a crime twenty years in active practice at the bar, in his is to ascertain in the plainest and simplest manner recent work on - The Laws and Jurisprudence of the guilt or innocence of such person, and when he England and America," says: The implication of is put on trial he should be tried, and nobody else. such legislatior, although not pleasant to contem- No lawyer who appears for the defense is entitled plate, may be useful to weigh and consider. Such to have his client acquitted, irrespective of the law legislation implies the existence of a judicial sys- and of the facts, and it is, in our judgment, an outtem that works in an imperfect and unsatisfactory rageous conception of the high office of an attorney

Soften or disguise the fact as best one that he has a right to adopt as a rule that the end may, such legislation implies a distrust either of justifies the means. the capacity or of the integrity of the judges. Every criminal is by the Constitution of this State Doubtless it is the former, for integrity on the entitled to a fair and impartial trial by a jury of his benches of our courts is a common and almost mi-country, and nothing else. He has no right to deversal possession. Such legislation, therefore, im- mand of society that he shall be tried by saints and

manner.

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