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which is imported by a merchant for sale, is imported by a mer. chant for his ownuse, or by a lawyer, a physician, or mechanic, for his own use, there can be no question about the trunsfer of the tax. It remains upon him who pays it.
According to that rule, then, the same tax may be both a direct and indirect tax, which is an absurdity. To urge that a man may either buy an article already imported, or import it himself, amounts to nothing; sometimes he could not have that option.
But the option of an individual cannot alter the nature of a thing. In like manner he might avoid the tax on carriages, by hiring occasionally instead of buying.
The subject of taxation, not the contingent optional conduct of individuals, must be the criterion of direct or indirect taxation. Shall it be said that an indirect tax is that of which a man is not conscious when he pays? Neither is there any such tax, The ignorant may not see the tax in the enhanced price of the commodity—but the man of reflection knows it is there. Besides, when any but a merchant pays, as in the case of the lawyer, &c., who imports for himself, he cannot but be conscious that it falls upon himself.
By this rule, also, then a tax would be both direct and indirect -and it will be equally impracticable to find any other precise or satisfactory criterion.
In such a case no construction ought to prevail calculated to defeat the express and necessary authority of the government.
It would be contrary to reason, and to every rule of sound construction, to adopt a principle for regulating the exercise of a clear constitutional power which would defeat the exercise of the power.
It cannot be contested that a duty on carriages specifically, is as much within the authority of the government as a duty on lands or buildings.
Now if a duty on carriages is to be considered as a direct tax, to be apportioned according to the rates of representation, very absurd consequences must ensue.
'Tis possible that a particular State may have no carriages of the description intended to be taxed, or a very small number.
But each State would have to pay a proportion of the sum to be laid, according to its relative numbers; yet, while the State would have to pay a quota, it might have no carriages upon which its quota could be assessed, or so few, as to render it ruinous to the owners to pay the tax. To consider then a duty on carriages as a direct tax, may be to defeat the power of laying such a duty. This is a consequence, which ought not to ensue from construction.
Further : If the tax on carriages be a direct tax, that on ships according to their tonnage must be so likewise. Here is not a consumable article. Here the tax is paid by the owner of the thing taxed, from time to time, as would be the tax on car. riages.
If it be said that the tax is indirect because it is alternately paid by the freighter of the vessel, the answer is, that sometimes the owner is himself the freighter, and at other times the tonnage accrues when there is no freight, and is a dead charge on the owner of the vessel.
Moreover, a tax on a hackney or stage-coach or other car. riage, or on a dray or cart employed in transporting commodities for hire, would be as much a charge on the freight as a tax upon vessels ; so that, if the latter be an indirect tax, the former cannot be a direct tax.
And it would be too great a refinement for a rule of practice in government to say, that a tax on a hackney or stage-coach, and upon a dray or cart, is an indirect one, and yet a tax upon a coach or wagon ordinarily used for the purposes of its owner, is a direct one.
The only known source of the distinction between direct and indirect taxes is in the doctrine of the French Economists-Locke and other speculative writers—who affirm that all taxes fall ultimately upon land, and are paid out of its produce, whether laid immediately upon itself, or upon any other thing. Hence, taxes upon lands are in that system called direct taxes ; those on all other articles indirect taxes.
According to this, land taxes only would be direct taxes, but it is apparent that something more was intended by the Constitution. In one case, a capitation is spoken of as a direct tax.
But how is the meaning of the Constitution to be determined ? It has been affirmed, and so it will be found, that there is no general principle which can indicate the boundary between the two. That boundary, then, must be fixed by a species of arbitration, and ought to be such as will involve neither absurdity nor inconvenience.
The following are presumed to be the only direct taxes.
General assessments, whether on the whole property of individuals, or on their whole real or personal estate; all else must of necessity be considered as indirect taxes.
To apply a rule of apportionment according to numbers to taxes of the above description, has some rationale in it; but to extend an apportionment of that kind to other cases, would, in many instances, produce, as has been seen, preposterous consequences, and would greatly embarrass the operations of the government. Nothing could be more capricious or outre, than the application of quotas in such cases.
The Constitution gives power to Congress to lay and collect the taxes, duties, imports, and excises, requiring that all duties, imports, and excises shall be uniform throughout the United States.
Here duties, imports, and excises appear to be contradistinguished from taxes, and while the latter is left to apportionment, the former are enjoined to be uniform.
But unfortunately, there is equally here a want of criterion to distinguish duties, imports, and excises from taxes.
If the meaning of the word excise is to be sought in the British statutes, it will be found to include the duty on carriages, which is there considered as an excise, and then must necessarily be uniform and liable to apportionment; consequently, not a direct tax.
Some argument results from this, though not perhaps a conclusive one: yet where so important a distinction in the Constitution is to be realized, it is fair to seek the meaning of terms in the statutory language of that country from which our jurisprudence is derived.
THE LAW OF LIBEL.
1804. I. The liberty of the press consists in the right to publish with impunity truth, with good motives, for justifiable ends, though reflecting on government, magistracy, or individuals.
II. That the allowance of this right is essential to the preservation of free government—the disallowance of it, fatal.
III. That its abuse is to be guarded against, by subjecting the exercise of it to the animadversion and control of the tribunals of justice; but that this control cannot safely be intrusted to a permanent body of magistracy, and requires the effectual co-operation of court and jury.
IV. That to confine the jury to the mere question of publication and the application of terms, without the right of inqui. ry into the intent or tendency, referring to the court the exclusive right of pronouncing upon the construction, tendency, and intent of the alleged libel, is calculated to render nugatory the function of the jury; enabling the court to make a libel of any writing whatsoever, the most innocent or commendable.
V. That it is the general rule of criminal law, that the intent constitutes the crime, and that it is equally a general rule, that the intent, mind, or quo animo, is an inference of fact to be drawn by the jury.
VI. That if there are exceptions to this rule, they are confined to cases in which not only the principal fact, but its cir. cumstances can be and are specifically defined by statute or judicial precedent.
VII. That in respect to libel there is no such specific and precise definition of facts and circumstances to be found, that consequently it is difficult, if not impossible, to pronounce that any writing is per se and exclusive of all circumstances libellous; that its libellous character must depend on intent and tendency, the one and the other being matter of fact.
VIII. That the definitions or descriptions of libels to be found in the books predicate them upon some malicious or mischievous
intent or tendency, to expose individuals to hatred or contempt, or to occasion a disturbance or breach of the peace.
IX. That in determining the character of a libel, the truth or falsehood is in the nature of things a material ingredient, though the truth may not always be decisive, but being abused, may still admit of a malicious and mischievous intent which may constitute a libel.
X. That in the Roman law, one source of the doctrine of libel, the truth in cases interesting to the public, may be given in evidence. That the ancient statutes probably declaratory of the common law, make the falsehood an ingredient of the crime. That ancient precedents in the courts of justice correspond, and that these precedents to this day charge a malicious intent.
XI. That the doctrine of excluding the truth as immaterial, originated in a tyrannical and polluted source, the court of Star Chamber, and that though it prevailed a considerable length of time, yet there are leading precedents down to the revolution, and even since, in which a contrary practice prevailed.
XII. That this doctrince being against reason and natural justice, and contrary to the original principles of the common law enforced by statutory provisions, precedents which support it deserve to be considered in no better light than as malus usus which ought to be abolished.
XIII. That in the general distribution of powers in our system of jurisprudence, the cognizance of law belongs to the court, of fact to the jury; that as often as they are not blended, the power of the court is absolute and exclusive. That in civil cases it is always so, and may rightfully be so exerted. That in criminal cases the law and fact being always blended, the jury, for reasons of a political and peculiar nature, for the security of life and liberty, is intrusted with the power of deciding both law and fact.
XIV. That this distinction results, 1, from the ancient forms of pleading in civil cases, none but special pleas being allowed in matter of law; in criminal, none but the general issue; 2, from the liability of the jury to attaint in civil cases, and the general power of the court as its substitute in granting new trials, and