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consequently extends to all places over which the sphere of action, and is not dependent upon the States for the execution of the powers assigned to government extends.

The provisions of the Constitution upon the sub-it. ject follow:

1. Congress shall have power to lay and collect taxes, duties, imposts and excises to pay the debts and provide for the common defense and general welfare of the United States; but all duties, imposts and excises shall be uniform throughout the United States.

2. No capitation or other direct tax shall be laid unless in proportion to the census or enumeration hereinbefore directed to be taken.5

3. No tax or duty shall be laid on articles exported from any State. No preference shall be given, by any regulation of commerce or revenue, to the ports of one State over those of another; nor shall vessels bound to or from one State be obliged to enter, clear or pay duties in another."

4. Representatives and direct taxes shall be apportioned among the several States which may be included within this Union, according to their respective numbers, which shall be determined by adding to the whole number of free persons, including those bound to service for a term of years, and excluding Indians not taxed, three-fifths of all other persons."

The words used in giving the power of taxation to the national government describe the whole power, and it was the intention of the convention that the whole power should be conferred; and that both persons and property should be subject to taxation. "And nothing is clearer," said Mr. Chief Justice Chase, in a celebrated case, "from the discussions in the convention and the discussions which preceded final ratification by the neces

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It follows, therefore, that a State cannot impose a tax upon an agency of the national government so as to impair its efficiency, nor can it tax the securities 10 or property of the United States. On the other hand, there is the corresponding limitation upon the power of the United States which makes it an abuse of the power of taxation if that power be so exercised as to impair the separate existence and independent self-government of the States." 12

But while there are only these two limitations upon the taxing power of the United States, there are certain directions, or rules, as to the mode of exercising the power. These rules are, that "all duties, imposts and excises shall be uniform throughout the United States," and that capitation and other direct taxes "shall be apportioned among the several States according to their respective numbers."

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These directions as to the mode of exercising the power are not strictly limitations of the power. It still extends to every object of taxation except exports, and may be applied to every object of taxation to which it extends, in such measure as Congress may determine." 18 It is at once apparent that for the purposes of applying these rules, the taxes levied by the United States are divided into two classes.

The first class comprises duties, imposts and excises; the second, capitation and other direct taxes. The former must be laid by the rule of uniformity; the latter, by the rule of apportionment. It will be seen, also, that in the directions for laying duties. and excises they must be "uniform throughout the United States," while direct taxes need to be ap

sary 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 everything except exports, in its fullest extent." The only express limitation, then, upon the taxing power of the national government is that which forbids it to lay duties upon exports. There are, however, certain implied limitations upon that power which arise from the nature and organization of the government itself. Both the nation and the States existed before the adoption of the Constitution. The purpose of the Constitution was not to destroy either, but to preserve both; for both are essential to the preservation of our form of government. Thus, while the government of the Union is limited in the scope of its powers, it is supreme within its

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be included within the Union." These terms are

McColloch v. Maryland, 4 Wheat. 316; Osborn v. Bank of U. S., 9 Wheat. 738.

10 Society for Savings v. Coite, 6 Wall. 594; Palmer v. McMahon, 133 U. S. 660; Home Ins. Co. v. New York, 134 id. 594; New York v. Comrs. of Taxes, 2 Black. 620; Bank Tax Case, 2 Wall. 200; Provident Inst. v. Massachusetts, 6 id. 611; Weston v. Charleston, 2 Peter. 449; Mitchell v. Leaven

worth Co., 91 U. S. 206; New York v. Hoffman, 7 Wall. 16; First Nat. Bank of Louisville v. Kentucky, 9 id. 353.

11 McGoon v. Scales, 9 Wall. 23; Kas. Pac. R. R. Co. v. Prescott, 16 id. 603; Tucker v. Ferguson, 22 id. 527; Union Pacific R. R. Co. v. McShane, 22 id. 444; North Pac. R. R. Co. v. Traill Co., 115 U. S. 600; Van Brocklin v. Tennessee, 117 id. 151; Wisconsin Cent. Ry. Co. v. Price Co., 133 U. S. 496.

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

viz., capitation or poll taxes and taxes upon land and its improvements. The great writer in the Federalist, in discussing the question of taxation, says that direct taxes principally relate to lands and buildings, and may admit of a rule of apportion

not identical. "The United States" includes the Territories as well as the States, and the clause requires uniformity throughout the whole national domain. But the "several States which are included within the Union" do not include the Territories, 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 Territories or the District of Columbia. But if they are extended to these places they must be apportioned

there as in the States. 14

The question as to what is a direct tax is one exclusively in American jurisprudence, and in determining it we can obtain little assistance from the conclusions of modern political economists. It is of the nature of an historical question, and to decide it we must determine what the Constitutional Convention understood by the term. When that convention met, the science of political economy had not yet put off its swaddling clothes. The first really great work upon the subject, in English, Smith's "Wealth of Nations," had appeared but eleven years before, while Malthus's "Essay on Population" did not appear until 1798-eleven years after. The classifications of modern political

economists have been made since the Constitution itself, and have little weight in determining the question.

It will be remembered that the Congress under the Confederation was required to apportion taxes among the States in proportion to the land and improvements thereon.15 This, a land tax, was regarded as a direct tax, and was so understood by the members of the convention. When, after considerable discussion, it was at last agreed that representatives should be "apportioned among the several States according to their respective numbers," it was agreed as a part of this compromise that these taxes, or direct taxes, should be apportioned in the same way. And as the only fair way of laying a poll tax is in proportion to numbers, the term "capitation tax" was added to the directory clause, and it became

"No capitation or other direct tax shall be laid unless in proportion to the census or enumeration hereinbefore directed to be taken."

The original resolution, as.offered by Gouverneur Morris, having in mind the taxes already existing, used simply the term "taxes." This was amended by prefixing the word "direct," and thus we find it in clause 3, section 2, Article I. Afterward the term "capitation tax" was inserted, as in clause 4, section 9, of the same article. It is evident, then, that the convention recognized two direct taxes,

14 Loughborough v. Blake, 5 Wheat. 317.
15 Springer v. United States, 102 U. S. 586.

number of people may serve as a standard. 16 The same writer says again, in speaking of internal taxes, that they are divided "into those of the

direct and those of the indirect kind." " In connection with this he discusses land taxes and poll taxes, but mentions no other direct tax. Then, too, the practice of the legislative department of the national government has been uniformly in accordance with this from the first; and Congress has in every instance laid all taxes, with the two exceptions named, according to the rule of uniformity. Direct taxes have been laid five times since the

adoption of the Constitution:-in 1798, 18 in 1813,19

in 1815,20 in 1816 21 and in 1861.22 The first of these
imposed a tax upon real estate, and a capitation tax
upon slaves. The last was a tax upon real estate
exclusively. Each of the other acts imposed a tax
upon real estate and slaves, the tax being required
to be levied upon both land and slaves according
to their respective values. The fact that slaves
were taxed both by capitation tax and according to
their value, has led some persons to the opinion
that the practice of Congress has not been uniform
in respect to this, and the opinion has been ex-
pressed that Congress regarded a tax on personal
property as a direct tax. A writer has said,
"There is no other way of reaching a distinc-
tion between a specific tax on a carriage and an
ad valorem tax on a slave, except to follow it into
the class of assessment on what is being consumed,
and connect it with the idea of expense.'
1123 But
this does not follow. The slave occupied a peculiar
position. He partook of the nature of both person
and property. As a person he was counted in the
population to determine the basis of representation;
but, being also property, he was not counted in the
same proportion as his white brother. Partaking
of this dual nature he was liable to a capitation tax
as a person and to an ad valorem tax as property.
The tax upon him as property partook of the nature
of a land tax, for in many of the southern States the

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slave partook of the nature of realty, and passed to the heir rather than to the administrator. 25

Not only do the action of the Constitutional Convention and the practice of Congress agree upon this matter, but the decisions of the Supreme Court of the United States also support the same view. In 1794, Congress, whose members had largely composed the convention of 1787, passed an act laying a tax upon carriages according to the rule of uniformity. Its collection was resisted on the ground that it was a direct tax and should have been apportioned. The case was argued on behalf of the United States by General Hamilton, who was, without doubt, the greatest constitutional lawyer of his age. Of the six judges of the Supreme Court at the time, four-Ellseworth, Wilson, Patterson, and Chase-had been prominent members of the Constitutional Convention, while another, Iredel, had been a member of the ratifiying convention of North Carolina. In this case all the judges who took part in the decision were unanimously of the opinion that a tax on carriages was not a direct tax, but a duty or excise, and being laid according to the rule of uniformity, was constitutional. And the opinion was expressed by the court that the only direct taxes in the constitutional sense are poll taxes and taxes upon land, and its improvements. 26 This opinion has since been repeatedly affirmed by the Supreme Court, 2 acquiesced in by the ablest writers on contitutional law, and can no longer be questioned.

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But it is to be remarked that the constitutional direction requires uniformity, not equality. A tax is uniform when its rates and provisions are the same throughout the entire United States; it is equal when the same rate applies to all the subjects upon which it is or may be laid. A tax may be uniform and yet exempt certain articles or classes of articles from taxation, or apply to different articles at different rates, provided, that no exemption shall be made in one State or section which shall not extend to all other States and sections, and the same rates upon the same articles shall be in force everywhere. In short, the constitutional rule for laying duties, imposts and excises, means simply this,that these taxes shall be laid by a general law which shall be in force throughout the entire territorial extent of the United States; and that they shall not be laid by special laws applicable to different localities. A tax is uniform, within the meaning of the constitutional provision on that subject, when it operates with the same effect in all places where the subject is found; and it is not wanting in such uniformity, because the thing taxed is not equally distributed in all parts of the United States." The fact that a tax bears heavily upon a corporation, or class of corporations, is not ground for declaring it unconstitutional, 33 and Congress may discriminate in favor of a class, as it has done in the act taxing the circulation of State banks. The power of Congress to discriminate in laying an income tax is just as great as is its power to discriminate in laying customs, for both must be laid according to the same rule. The income tax act of 1864 exempted incomes to the extent of $600, and what was annually paid for rent or repairs to residence; and laid the tax at different rates. Five per cent per annum was levied on incomes above $5,000 and not in excess of $10,000. The seven States of Massachusetts, New York, New Jersey, Pennsylvania, Ohio, Illinois and California paid threefourths of this tax, yet they had only about one

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24 Chinn v. Respass, 1 T. B. Mon. 25; Thomas v. Tanner, 6 id. 52; Wells v. Bowling, 2 Dana, 41; Plumpton v. Cook, 2 Marsh. 451; Copley v. San-fifth of the population of the United States, and ford, 2 La. An. 335; Sneed v. Ewing, 5 J. J. Marshall, 460.

25 Hogan v. Bell, 4 Stew. & P. (Ala.) 286; Gray v. Suffold, 5 Ark. 637; Rogers v. Farrar, 6 T. B. Mon. 421; Justices v. Lee, 1 id. 247; Ratcliff v. Ratcliff, 12 Smed. & M. 134; Read v. Manning, 30 Miss. 308; Wright v. Lowe, 2 Murph. 354.

26 Hylton v. United States, 3 Dall. 171.

27 Veazie Bank v. Fenno, 8 Wall. 533; Springer v. United States, 102 U. S. 586; Pacific Insurance Co. v. Soule, 7 Wall. 433.

29 William M. Springer v. U. S., 102 U. S. 586; Pacific Ins. Co. v. Soule, 7 Wall. 433.

99 Springer v. United States, 102 U. S. 586.
20 Pacific Insurance Co. v. Soule, 7 Wall. 433.

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

about the same proportion of the assessed property. Yet after the fiercest contests this act was repeatedly sustained by the courts.

But, as has already been said, the national government cannot exert the taxing power so as to impair the separate existence and independent self-government of the several States; and, as a municipal corporation is an agent of the State and is a portion of the governmental power, it follows that Congress cannot tax the income of a municipality; and where a municipal corporation held a mortgage upon the

32 Edge v. Robertson, 112 U. S. 580.

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

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

property of a railroad company, and the mortgagor was required to deduct from the interest due the mortgagee each year a tax thereon and pay the same to the government, such tax was held to be a tax upon the income of the city and void.34

For the same reason Congress cannot impose a tax upon the salary of a judicial officer of a State, which is paid out of the State treasury; 35 nor can it tax the processes issuing out of State courts,36 nor a railroad owned by a State. But where Congress imposed upon every national banking association, State bank or banker or association, a tax of ten per cent of the amount of notes of any town, city or municipal corporation paid out by them, it was held to be not a tax upon the obligation, but upon its use in a particular way, that is, as a circulating medium, and therefore, valid. And the fact that Congress intended to destroy the use does not alter 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; 39 and where an alien takes a devise he cannot set up his alienage as a ground of recovering back the succession tax paid by him under the act of June 30, 1864, which laid a tax upon the devolution or disposition of real property by deed, will or descent. tax, however, is neither a tax on land nor a capitation tax. It is not a direct tax within the meaning of the Constitution, but is an excise. 40

Such a

It has been held that the act of Congress of August 3, 1882, to regulate immigration, which imposes upon the owners of vessels who shall bring passengers from a foreign port into the United States a duty of fifty cents for each such passenger not a citizen of this country, is a valid exercise of the power to regulate commerce with foreign nations, and the tax laid by the act complies with the constitutional requirement of uniformity."

The direct tax laid by act of Congress of August 5, 1861, did not create any liability on the part of the States in which the lands taxed were situated to pay the tax.42 But the assessment of this tax under section 4 of the act of June 7, 1862, for the collection of taxes in insurrectionary districts, created a lien on the land which might be discharged

35 Buffington v. Day, 1 Wall. 113.

36 Warren v. Paul, 22 Ind. 276; Union Bank v. Hill, 3 Cold. 325; Moore v. Quick, 105 Mass. 49. 37 Georgia v. Atkins, 1 Abb. (U. S.) 22.

38 Merchants' National Bank of Little Rock v.

United States, 111 U. S. 1.

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by payment. But where payment was not made, and the land was sold to pay the tax, and the surplus arising from the sale was deposited in the treasury, the owner has no right of action against the United States prior to his application therefor, and the statute of limitation runs only from the date of such application. His sale of his right of redemption does not affect his right to recover such surplus.44

The Internal Revenue Acts of the United States, relating to licenses for selling liquors, etc., do not authorize the licensee to carry on the licensed business within a State, but are only a mode of imposing taxes upon the licensed business, with provisions for enforcing payment of such taxes. These provisions are not contrary to the Constitution nor to public policy. 45

SCRANTON, Pa.

THE

JAMES J. HAMILTON.

THE FAILURE OF JUSTICE.

THE universal disgust which pervades this country at the manner in which the criminal law is administered is beginning to take form, and the better elements of society are just beginning to assert themselves, although the prospects for an immediate change in matters appears to be somewhat discouraging.

At the recent municipal election in San Francisco a large number of the best citizens signed a manifesto in which the charge was made that justice was constantly defeated in their courts, owing to the technicalities and quibbles indulged in by the judges; that the public rights were habitually ignored; that everything was ruled against the State, and that criminals seemed to be better treated than honest men, or words to that effect. A similar condition of things exists to-day in many of the western States, notably in Missouri, Iowa and Illinois.

The administration of the criminal law in Illinois

is perhaps the most vicious and unfair toward the public of any that ever has enabled rogues to escape justice. It is not the fault of trial judges. The situation in which unwise and stupid legislation has placed them is the most pusillanimous and degrading that ever a judicial officer has occupied. Indeed, it seems to be the fixed policy of this Commonwealth, as indicated both by the General Assembly and the Supreme Court, to treat nisi prius judges as incapable of discharging their duties properly, and to degrade them to the character of a 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.

40 Scholey v. Rew, 23 Wall. 331.

41 Edge v. Robertson, 112 U. S. 580.

4 United States v. Louisiana, 123 U. S. 32.

43 Bennett v. Hunter, 9 Wall. 326.

+ United States v. Cooper, 120 U. S. 124.

45 License Tax Cases, 5 Wall. 462.

men alone, with the judge left out, statutes have been passed which utterly deprive judges of all power to promote justice or to do anything to enlighten the jury on any question the decision or elucidation of which pertains to the judicial function.

plies a distrust of the capacity of the judge to deal with the evidence in summing up, and overlooks the need on the part of the jury of intelligent judicial instructions and guidance. The remedy is not in the life of these statutes, which are based on the assumed continued existence of the cause of such statutes, but the true remedy is to remove the cause by securing judges who are competent to the full discharge of the high and delicate duties of the judicial office. Under the practice required by these statutes mistaken verdicts are greatly multiplied, and it is to such causes that the trial by jury has

cases to be an avowed maxim of professional action that a good cause is for the court; a bad or doubtful cause is for the jury."

At the common law a judge always assists the jury to arrive at a correct conclusion by summing up the evidence, explaining the case and the issues involved, and by grouping together the main facts and analyzing them, and stating what is essential and what is not essential. In this way the understanding 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 American citizen their conclusions will not be far out of the way, if they are not absolutely correct. But by our statutes the judge is forbidden to open his mouth or say a word to a jury without subjecting himself to criticism or having some astute counsel interpose an objection. He is forbidden to explain to the jury the nature of the action or to charge on the facts or to sum up the evidence. He is forbidden to express any opinion on the value of testimony or to indicate in the remotest manner what the salient points of the case are, and is expressly required to confine his charge to reading written instructions that often amount to nothing more nor less than so many conundrums, and produce on the mind of the average juror nothing but confusion and disgust.

There are not many States where such a practice prevails, but Iilinois stands in the front rank of those that undertake to administer the law through the instrumentality of judges that are deprived of their most important functions. If we are to expect satisfactory verdicts, the presiding judge must have power to make the way of the jury plain and clear. This can never be done as long as we restrict a judge to simply reading instructions, drawn by opposing attorneys, which are so inconsistent in their nature as to slap each other in the face with every

sentence.

Judge Dillon, a jurist of national reputation, who spent twenty years on the bench, and more than twenty years in active practice at the bar, in his recent work on "The Laws and Jurisprudence of England and America," says: "The implication of such legislatior, although not pleasant to contemplate, may be useful to weigh and consider. Such legislation implies the existence of a judicial system that works in an imperfect and unsatisfactory manner. Soften or disguise the fact as best one may, such legislation implies a distrust either of the capacity or of the integrity of the judges. Doubtless it is the former, for integrity on the benches of our courts is a common and almost universal possession. Such legislation, therefore, im

We do not believe that this system should be any longer continued. The administration of the criminal law, rightly understood, is one of the highest functions ever conferred on mortals. And those who take part in it should be held responsible to society for the manner in which they discharge their duties, whether judge, jury, counsel or advo

cate.

A trial in this country for the commission of a crime ought to be something else besides a forensic combat between opposing counsel, where either party is privileged to conceal the truth and trick his adversary. It is a solemn proceeding, instituted and carried on by the sovereign power of the State at public expense and inconvenience for the redress of grievances, the ascertaining of truth and the doing of justice. Such a proceeding should be characterized by the utmost fairness, and the absolute truth and justice of the matter should be the end and aim of all concerned in the same.

If a person accused of crime is justified in standing on all of his rights, and waiving none of them, then let it be remembered that society has rights as well as those who violate its laws, and that in upholding the rights of the criminai, the rights of honest men ought not to be forgotten or disregarded. What society demands in every case where a person is charged with the commission of a crime is to ascertain in the plainest and simplest manner the guilt or innocence of such person, and when he is put on trial he should be tried, and nobody else. No lawyer who appears for the defense is entitled to have his client acquitted, irrespective of the law and of the facts, and it is, in our judgment, an outrageous conception of the high office of an attorney that he has a right to adopt as a rule that the end justifies the means.

Every criminal is by the Constitution of this State entitled to a fair and impartial trial by a jury of his country, and nothing else. He has no right to demand of society that he shall be tried by saints and

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