The New York Herald Newspaper, April 9, 1868, Page 4

AMON NRT Sa ed LEE ST THE INCOME TAX. weg 18 THE TAX CONSTITUTIONAL? MR. BARTLETT'S ARGUMEN The constitution of the United Siates (article 1, sec- tion 2) provides that “Representatives and direct taxes shall be apportioned among the several States: which may be jnuuded within the Union according respective uombers.? ‘This is plain, According to the estab- erpretation it forbids, by neces- ‘y implication, the levying of any direet tax not so ad. Buc the framers of the constiturion were reise of the power of government. They is unmistakable, ly jealous of the ex ation by the gener: saw fit Lo surround it with extracrdimary safeguards, ‘They did not trust the prohibition to lay direct taxes, save in the manner specified, to mere inference, ition might seem to be, ame article they state this -—“No cupita- however civar the imp!’ the ninth section of fhe terms as follows: to the enumeration hereinbefore directed to be taken.” ‘Tue income tax is not So ap- Js ita direct tax? If itisa direct tax, not beg so apportioucd, it must be unconstitu- in proportion An income tax is not of so recent origin that there kas not beea sufiicient time and opportunity and charecter and the description of tax to which it belonzs to beeome fully understood. We have bnt to open the book of history to study it nt of centuries, More than a thousand sagu it was one of the chief causes of the de- struction of the mightiest Power on earth, The Toman empire fell under the oppressive weight of NW those taxes a capitation tax, iue or income, seems to hiwe ed and the most dreaded, 66, 856; “Gjbbon’s Decline and pire,” vol, ii, 149, 150; Zo- ) 1 former times cling to this species of tax uble instrument of tyranny, Crodnatly, as nations gained their a y wel direct taxes, and of proportionci to rev: been the most is prolific mother dutifal handuatd of wig, inquisitorial, lunpudent, 3 nature, it consorts not with Ye icial investigation tmto the operation 2 income tax in Englund discovered an extent iending its collection which shocked the the country. house oaths, Ww made scrupulously correct re- turus, under the law, bat the reat nijority exhi- ee of modesty in siating ‘their incomes il have been more becoming in a self virtves; While inany an in- t to bolster up his tottering exaggerated representation The law had worked of tits busine: easy road, Jeading both ways into temptation. A TAX ON HONESTY, MeCuiloch—not our Secretary of the Treasu the distinguisiucd Eugtish writer on political eco- ‘KS. est dislike to the snably a few fadived to be thought riche desire to quiet the suspicion their real amount, the and underrate them, © * * And it is nest to impossibie to deteat the machinations of persons by snsticy mn ages auch an examination can lead to and the commissioners e her accept the ied by their oath, or they must their‘own notion of eof eusy virtue im: Hence it may truly ve sald i hig way, ipdependent! ps perp tt Ciseloaitren Hust the F (Treatise on Taxation, ‘Th might weil be ur Y roll @ system Of taxation the inevitable tendency of whieb {sto corrupt the moral sense of propose to pursue at eu that a nation has no right J do not, however, ‘al bearinr. of U questi¢u whether, wad ome ax, not apportioned among the States according Co We census, 18 constituuanal, © lax & Capitation or other direct tax? This iVelves tue Wavle question of its coustitu- TAX A CAVITATION TAX? What is a capitation tax? vier’s “Luw Dictionary” ;— aa imposition which to bis estate and ability, un whom there is no higher liferently upon every indittereatly tro yp ieir stock, oF from the cems to be an accurate and com- four income ta: 41 Adam Smith was in great rey i ay at the tine of the ad is often quoted in ‘ase “capitation in this country of a Scotus to be tltat itis always Vola iad; and it has been the prac Winch have levied suci Hut uuilornits sic of a eapitat ation Winch Constantin by substituting ail the Uitaes, cus- tere spoken of rivoned to the gains, proiiis pa’s “Peoline and Fail in Eneiand poll nit of tucit SUpposed 1 nis to about lour hua Jourmai de Palais, Vol. th, pe 82U ( the question, but L do not de rauine, Whether or not, witain the ger branch of th 18 We # direct Txt proportion to the sastitetional AY iMsde—t prope phy of the standard writers on trine of France, a country most perence, with this kind oF es in the British ia standing of the ny the framers of (oe ¢ cisions of the Suprey hat these are not higi: Y , aud if we find that tae stantially agcee may we mot consider ty WHAT IS A DIRECT TAX? Adam Smit + \ person's revenve—which is inoome—to be a direct biba vol. ils, P. 331.) work on taxation into n d.rect taxes, aud i under the head uf "47 another name for bis indirect taxes ct tax to be the | mand of a speciic portion very persons who it is rf Dive! taxes are Either on Hrcume ol should pay if, Most taxes on Ml of Diet Taxes. Dr. Lieber, reiecring to the disferent modes of iev; The firs: way is direct—to statement of the partios ¢ OF from oficial tnforiiation, the net inoue of per ‘This kind of taxes are called direct. i@ Americana, vol. vii, p. 155.) Kes Are Wiuaily divided into direct and indirect; former include asses+ments mate upon the real I estate Of Lie taiji " hada long and biter ing taxes, say termine from tt n hie ineurne y tial of the IBCoMae « tax, extending through the last century almost Gown to lis close. Proonbly it ia from the thorough Knowle ge thy wi'dd Of its operaiion Lys pleas become bavirstihy heey a tee Sagosinon to it, Luorts have been made to resiove tt; but in vain, She subintts to changes of dynasty, to changes in the fora ef government; she subinity to many Kinds of oppression: but to this one speeles of tyrauny she seems fully determined that sho will never agiin submit, Of Course the sifpject of income tax has been largety, learuedly and ably diseussed in France, und it ius invariably been regarded, boti by its advovates a yoneuts, as a direct tix, It is treated 01 as a (tax in an exheustive discourse subject of taxation recently delivered before ui encl Curr des Comples by Count Casabianca, the distinguisied Procureur General, whien is at present atiracting cousiderabie attention In other COULLMES as Weil as his Own. Let us next turn to England, Her ideas of politt- cal ccouomy are derived mainly from the same sources us our own. Sue luid an income iaXx as early aS 119%. It speedi'y eroused te popular displeasure, and when, two ¥ an income was posed @y W the imeasure was as mobbed on his wi From its very enactment it erful opposition, whieh gained 1 dnd strength, euvolling within its ranks the high- est Luient aad inost »plendid ovatory of the conntast until the repeal of tue tax in 1816, will the torian informs us, took place “amid hugzas only equalied by those which greeted the fall of Water- loo. (Alison.) There isa deep-rooted and general sentiment in Engiand against un income tax, except in time of Wat, or a8 immediately folowing a war, specitically jor dciraying its Cxpenses, On one poimt there is no dilference of opimen whatever in that country, and that is that it isu direct tax, When Sir Robert Teel brought forward lus pian for an income tax im 182 be satd:—“dndirect taxation hus reached its limiis, and cam no longer 2 relied My pian ts tiis, to levy an income ‘Parti wentary Debates,” lvi. 428; “Ann. And Lord Jolia Russell said in repy ‘0 resuri Lo the desperate measure of an in- come tax in such circumstances is Holling less tuan to prociaim to the world Liat your resources ure ex- hausted, thatmdirect taxation has reached its limits,” &c. (Parliamentary Debates,” Ivil, 80, 147; “ann. Keg,,” 1842, 71, iY.) tary debates on the subject of in- come tux—aud there are lew Which lave elicited AMore cioquence. xtending over inore tan half a Century, in Which at duierent times such 1en as Pitt, aud Pullency, and Castiereagh,and Madock: and ‘lierney, wud Baring, und Brougham, and Pee! @ud Russell have participated—by ad these British stalesimen hus Lue income xX Leen always spoken Of as a direct tax. ‘Thus we sce that the lawyers and statesmen of Fratce and Englaud agree with Lie political econo- nists thal ab income Lax is a direct tax. Yur neXt inquiry 18 whether te framers of the Coustitutiun understood the meaning of the purase derect Wie when ey employed it in Chiat insurument, and What they undcrstoud ils mcauing to be. ‘There 1s good reason to believe that tiey uuderstood it per- tecuy. ‘khey were an intelligent body of mea, Atnong them were scholars und Juwyers and states- wen, they were met together to make sure tho joundatious of a governmeut resulling trom a revo- luuop which had its very origim in un just taxattoa, In tie Declaration of Inde- pendence tuey had made this couspicuous amoug the a80US On Which they relied to justily them tu (he opinions of wiankind for renouncing al- Jegiauce to the mother country, Jf there Wasauy sub- ject wich Ley: were bound to understand it was the sugect of taxes. it occupied much time and abicuiivn in the convention, The provisions of the su‘uulon are different Irom those of the old ar- uuvderation., They were deliberately con- i, carefully Worded and fully debated. 'The purusevogy Was changed and amended trom the original draft beiure tieir adoption, These provisions were regarded by all the States as of tie greatest iiuportance, and it was appréliended and believed iat upon thelr just aud correct settlement would depend the ratification of tue constitution by the States and the etiiciency and perpetuity of the union ulout to be formed. Nay, more, the confederation of the states, formed under the old articies of 1774, was at that very time crumbluug aud falling to pieces Jroim the want of the proper adjustuueut of exactly lus power of direct taxation, THE CORNER STONE OF THB CONSTITUTION. It is no exagges acion lo say that this is the fjounda- tion, the corner sione of the constitution, Tne pres- ent constitution originated from the supreme neces- sity wh.ch had been experienced under the old con- Sedevation of the power of taxation In the general governiuent, An experiment of nine years had proved (aut Without ts tue government could not goon. Ju the emphatic words of Mr. Madison, “the jederal auchority liad ceased to be respecied abroad; Wi Louie 1b iad lost atl conidence and credit.” ‘Lue old confederation depended tor revenue upon requisitions on the severe: States, with which the Slates might comply or noi, as they chose, and with whicu they generally did cuoose not to comply, cither prowptly or fully, ifatatl. This was the radical in- urmity of the confederation, James Madison reported the debates of tie convention which tramed the con- stitution, and in’ ais introduction to those debates Madison says:— ‘The radical infirmity of the articles of confederation was the dependence of Congress on the voluntary and simultane. Hance with {ts Teilsttions by #o many independent Lies, each consulting more or less ite purticuiar in- teresis and couvenience, aud igtrusting the compliance of the others, (“Elliot’s Debates," v, 112.) It was to cure this radical infirmity that the ieee: ent constitution Was projected and formed. (ibid, 112, its.) Other great iunprovements, it is true, on the articles of coniederation, were made in the con- stitudiun when it came to be formed; but the most imporiant of all was in the reguiavion of taxation. Aicxander Hamilton, foremost among the progeni- tors of the constitution, who drafted address to the States inviting them to send delegates to the convention by W4ich it was formed, wrote thus in the Fvderalist: ; ‘The power of taxation fs the most important of the authori- tics proposed to be conferred on the Union, (P. 285, J. 0. Hauniton’s edition.) ‘The necessity of conferring this authority upon the general go' Ament had become obvious; yet there was no power which the people were more deter- miined Lo guard so that it could never be arbitrarily exercised, Of ali political questions there was none in Wiich they nad taken a deeper interest. 1t was the right which they prized most hignivy, The whole power of Great Britaia been humbled in the dust in an unsuccessful attempt to wrest it from them. The frit establishment of this right was the costly aad precious fruit of the evolution, ‘The “graves of those wio had fallen its delence were then fresh-made, ‘The wiielt y of the survivors had received, if iewled, were still visible aud not forgoiten, Wash- ington, Who presided over the convention which formed the constitation, lad acquired his unperish- able glory ty the war begun for the maintenance of that oh. The States naturaily watched with scrutinizing jealousy the terms im which and the ex- tent ‘o which all authority whieh had been pre- serve: at such cost was conferred upon the general goverament; and the history of the tunes justities the remerk that not one of them would have given 408 Assent Lo tae grant had tt not been accompanted by the condition Umit mo direct tax should be laid eXcept im proportion to ihe census, Every assurance was piven by the advocates and supporters of the constiudon that this provision couid not by any possibuity ever be si0i@ued. It is evident irom what has been said that the framers of the constitution attacked the greatest imporunce to the provision respecting direct tax- ation, and that they adopied M understandingiy. Wuat, lich, did the framers of the constitution mean by direct (axes? If we refer for an answer to the rations of the very men themseives, and to the Aporancous hiswry, we shail ave adhered to jaw which requires te best evidence of case aumits, By such evidence I expect Ww that the iramers of the coustiution con- Fi'st—A tax on land to be a direct tax. Second—A generai ussessinent on property to be a direct tax. L then expect to establish, by legal decisions, that— Thivd—W & tax on land be @ direct tax, or If a Guo oral assessment on property be a direct tax, it 10S, as an Ghavelaubie comsequence, that the in- x iva direct tax. Ti were lwo parties tn the federal convention, dle Irom cach other principally in respect to Nae @ Wei ower wittch ought to con iit eral government. If we find that ders of these two antagonistic nibtatony be contro- ly us to the construction of this Piping twis as proof which rue the ablest, most astute, most distinguished op- ponent of tue constituiion In that convention was Luther Martin, a deiegate from Maryland, at that (ome Attorney Gen of the Utate ane see aeons years the great luniinary of its bar, One of the fullest and tyust Interesting reports ever made of the doings of {vat convention 18 contained in an address by Mr. Berta Legislature, It 1 entitled eh he yenuine formation, delivered to the Loywintwe of the State of Maryland, relative a of explavation » Was cailod—tiwe is, Te coumtuittee appointed by conveaiivd to dralt the constitution—as to meaning of the pro tien about taxation, From their @.plagauon, a stated by Mr, Mi it ap- that by the word duties was ime: fimposts applied to goods imported; excises: bE consumption; walle ditect tax- & capeation on ibid, ep sea) vp. {at convention & avon Was aswessuieul on weir property.” The Stwte of sew york had tn tl ie wat distinction—Alexandet Hamilton, 1 Lie Drygulest, clearest intellects of the Kevolu- onary perod—as sirong in his advocacy of the consuiuion as Lutuer aarun was in his opposition tot in the celebrated carriage case (1H, vs. the Vattou st , 3 Dal li) Mr. Masmilton appeared jor tae goverament, aad in the course of his argu. went he wenhoned as taxes, which were to be con- sider dire’ atx! pliation taxes, taxes on land and buildings ane ‘ul assessment. (See his brief tie Case Felerred (0. se two great lawyers—leaders m paruics—concurring in their “of (iis provision of the constitaiion opinion that am assessment on pro- ct taxation, My notes on the carriage cast accoupany tins argument, conuin ample Bit convincing evidence that those who framed aad those W.o adopted the constitution an- derstood svat direct (axes might ve levied upon per- Bull poperiy as Weil as Upon real estate, ‘Chas (uyre cap be BO dipsuuctiog, im point of law, .-j & betweta 4 fax on property, of any kind, and a tax thon te income ate same property will fully ap- pear further on in this arguiment, Among tie greatest men and the ablest constitutional lawyers ta the early history of the government stood Saiuel Dexter, of Mas-achusetis, Here is his portrait, drawa by the master hand of Daniel Webster :— He was 4 lawyer, and he was also a statesman. He had studied the constitution whea he filled public station that he mi,bt defend it; he bad examined its principles tht he" might maintain them, More than all men, or at least ay much as any he was attached to the .en- eral governzient aud to the union of the States. His fectings aud opinions ali ran in that direction, A question of consti- tutional lave, too, was, of all subjectay that one which was best suited to his talents and learning, Aloof from techincality and unfettered by artiticial rule, such @ question pa.e oppor: tunity for that deep and clear analysis; that nfslty yrasp of wineiple, which so much distinguished bis bicher edorts, ils very statement was arguinent; bls iniercuce seemed Samuel Dexter, such as he ts here portrayed, was in Congress in 1794, when arose the tirst discussion in that body as to what constitutes direct taxation. Mr. Dexter suid:—‘ His colleague (Mr. Sedgwick) had stated the meaning of direct taxes to be a capitation tax, or a genera! tux, op all the taxabic property or rginia the citizens, and that @ gentleman froin Virg' ‘Mr. Nicholas) thought the meaning was that all Xes are direct which are pala by the citizen with- out being recompensed by the consumer; but that where the tax was only advanced and repaid by the consumer the tax was indirect, He thought that both opinions were just and not inconsistent, though the gentiemen had differed about them. He thought that a general tax on all taxable property was a di- rect tax, because it was paid without veing repaid by the consumer.” (Annals of Congress, 1793-5. I have endeavored to show that “ Political and legal phrase, has a definite me: 4 established by long and enlightened usage, both i the Old World and the New, and that the plrase was Dnderstandingly used by the framers of the constitl- tution in that instrument. Taxes on land and @ general assessment upon property certainly have been held, and are held, by statesmen and lawyers to be direct taxes. We shall now see that no valid and legal distinction can be made between a tax on land and a tax on the income of the same land, or between a general assessinent upon property aud @ tax upon the income of tue same property; and in considering this principle 1 come to the solid im- movable rock on which 1 ground my whole argu- ment—that is, to the adjudication sof the tribunal of last resort for such questions in this country, the Su- preme Court of the United States. ‘These settle the whole matier beyond a doubt and place it out of the reach of cavil. DECISIONS OF THE SUPREME COURT. In an early case (1 the court laid down the doc- trine that a tax on land isa direct tax in the follow- ing emphatic terms:—‘Both in theory and practice tax on land is a direct tax.” (ilylton vs. the United States, 3 Dallas, 171.) 5 Now, it will appear by other decisions of this court, and of other courts, that a tax on the income of lane is in effect, and in’ law, the same thing asa tax on the land If; and as the income tax is a tax on the income of land as well as the income of other pro- perty, itis in legal intendment and construction a tax on land, as well as on other property; a tax on land—a direct tax—and, being unapportioned ac- cording to the census, it is consequently unconstitu- tional and void. It has long been well settled that “a devise of the income of jand is in effect the same as a devise of the land itself.” (v9 Mass., 372; 1 Ashmead, 136.) Soin the State ‘of New York’ the same ’ doctrine is held. (11 Wendell, 208; 17 Wendell, 402) A devise of the rents and profits of jand or the income of land is equivalent to a devise of the land itself, (Washburn on Real Property, 2, 752, and cases there cited.) And the rule which has unilormly gov- erned the Supreme Court of the United States is that where any principle of law establishing a rule of real property has been settled in the State courts the same rule will be applied by that court that would be applied by the State tribunals. (Jackson vs. Chew, 12 Wheaton, 153.) Thus it is the doctrine of the Supreme Court of the United States, as well as of the Stace courts, that a devise of the income of land is the same thing as @ devise of the land. And the court has decided in severat cases that in levy- ing taxes, as well as in the devise of land, the sub- siance, and not the form must govern, and have proncenced ilegal the various attempts which have from time to tlie been made to lay some prohibited tax by the mere evasion of the express words of the prohibition, There is certainly more plausible ground for con- tending that there is a difference in principle be- tween @ tax on @ bill of lading and a tax on the article shipped than for a distinction between a tax on the value of land and a tax on the income of land, Yet inthe case of Almy vs. the State of Calt- fornia, (24 Moward, 174), the Supreme Court of the United States heid that a tax or duty on a bit! of lading, although diitering in form from a duty on tie article shipped, is, in substance, the same thing; and that a law proliibiting a tax on the article shipped by necessary implication prohibits a'tax om te bill of lading of the same article. ‘The State of Maryland undertook to levy a tax on the occupation of an importer, by requiring him to pay fora license to carry on his business; but Chief Justice Marshall decided that this was a tax on im- poris, and, being laid by a State, Was unconstivu- tional and void. (Brown vs. Maryland, 12 Wheaton, In another case the Supreme Court of the United @tates decided the exact question at issue here, whether a tax on the income of a thing is the same as a tax on the thing itself, and held that a tax which could not be legally levied on an office could not be legally levied on the income of the same office: from which it irresistibly follows that if an unapportioned tax cannot con- stitutionally be laid upon land, it cannot constitu- tionaily be laid upon the income of land. This was the case of Dobbins vs, the Commissioners of Erie County, in which the court decided that the emolu- ments of an office could not be taxed@f the office was exempt. (16 Peters, 435.) If the decisions of the — court the highest State tribunals and of the Supreme Court of the United States—are to stand, if a devise of the income of land is a devise of the land itself, if a tax on the income of an office is in effect the same as a tax on the office, then the income tax, being a tax gn the income of property in general, is, in legal principle, the same thing as a gencral assessment on propert. and being a tax upon the income of land, as well as of other property, is, in effect, a tax on land, It is a direct tax, and not being appor- tioned to the census, as the constitution requires that all direct taxes must be apportioned, it is laid without the authority of the constitution and aalnst the authority of the constitution, and, as has beep decided by Chief Justice Marshall, “an act repug- nant to the constitution cannot become the law of the land.” (Marbury va. Madison, 1 Cranch, 137.) The statute law of the United ‘States, as well as the decisions of the courts, recognize real estate and the income of real esiate to be the same thing. It Aecounts a succession tothe income to be a succes- Sion to the estate, This is done by the very act which imposes the income tax. Section 127 of that act lays @ tax on the succession to real estate; and it defines a succession to real estate to be every disposition of real estate by reason whereof any person shall become pec pad entitled “to any real estate or the income ereor. CONSEQUENCES OF A DIFFERENT DOCTRINE, The case might be safely rested here on the de- cision of the courts; but the matter is of such grave importance that it is worth while to pursue it some- whet further and to consider what would be thecon- sequences of a dierent and opposite doctrine, The States have generally assessed their taxes upon real and personal property and have censidered this direct taxation.’ (See Report of Oliver Wolcott, Jr. Secretary of the ‘Treasury, to Congress, on Di ‘Taxes, 1798.) George Nicholas, in the Virginia Con- veniion in 1788, speaking of the State systems of taxation, said:—“The public treasuries are supplied by means of direct taxes.” (3 Elliot, 99.) ‘the fead- ing statesmen of a later date have regarded a gene- ral assessment on property—the prevailing mode of levying taxes in the States—as direct taxat “The States have a, resources without resort to heavy direct taxes.” | (Webster in the Hayne ayes | Thave already, 1 trust, established the point, by reference to judicial decisions, that if a ihooral ane sessment on La gtd is a direct tax, the income tax, on the income of property in gencral, is not less & direct tax. ‘To controvert either branch of this proposition both must be controverted. us examine in what predicament a reversal of the doctrine that @ general assessment.on, Rerty is | carees hoe pn on Ljeave the State of, yf . The m portant fnancial legislation this State ts based upon that principle.” Our state constitution (article 7, sections Oe shall be that no debts—with certain exceptions th fled—exceeding in amount $1,000,000 contracted, unless in the law author: the same provision be made for the payment of the in- terest and of the principal within eighteen years by an annual direct tax. ‘The State has uniformly con- strued the requirement for a direct tax to be fulfilled by @ general assessment. If a gen- eral assessment be not a direct tax the tice of the State of New York in this particu- r has been, and continues tobe, wholly erroneous and unconstitutional. The Stato raised twenty- seven millions of bounty money. It has no constitu. tional authority to raise money to pay the debt thus incurred except by a direct tax. “The on! vision mace for raising the money to pay it Ms bY general assessment. if the general assessment be not a direct tax every step which the tax gatherer takes towards collecting that twenty-seven millions of bounty money—either the principal or the inter est—he tramples upon the ‘constitution of the State. According to Well settled principies there can be DO distinction betws @ geueral assessment on Per dil ® tax on the income of the same re it follows that either the general assessment aymont of the millions twenty-seven of anys hot ® direct tax, and js juently @ violation of the constitution ‘the State of New York, or the income tax is a direct tax, and, being unapportioned, is conse- quently a violation of the constitution of the United States, If one is a direct tax both are direct taxes; and one or the other must inevitably be unauthor- ied. If the income tax is to be mainiained the legis lation of the State of New York for paying the bounty Joan cannot be amended too soon. ‘The one is re pone to the constitution of the State, or the other is repugnant to the constitution of the United States. From this conclusion there ts no escape, The only und on which the unayportioned income tax can ¢ held to be constituttonal is that a tax which would not be legal if laid on property may legally be laid on the income of the same Fe oot 9 Let us see with ‘what mischief this principle would be fraught if in- troduced into State legisiation, If it is sound and as applied to the laws of the na- ‘The States are prohibited from laying imposts or du- Wes om Ypporis of exports, what may be NEW YORK HERALD; THURSDAY, APRIL 9, 1868--TRIPLE SHEET. “absolutely necessary” for executing their inspec- tion taws, (Couns, U. 3., art. 1, sec. 10.) IT WOULD OVERTHROW THE GPNERAL GOVERNMENT. If the doctrine on which the income'tax is founded is correct; if the United Statcs, being prohibited from laying an unapportioned tax on land, can lay it on thaincome of land, then, pl parity of reason- ing, the Staics, which are prohibited from taxing imports and exports, may lay o tax of any aimount on all Tneomes derived from imports and exports, The importance, the necessity of guarding against such subtle distinctions, existing only in form, in the exercise of Lhe power of taxa- tion, Was apparent to Chief Justice Marshall, when the subject rst came soaictally before him, To his comprehensive, sagacious, far-seeing mind it was clear that the very existence of the general govern- ment Sopended upon overruling these unsubstantial, technical destinctious. In speaking of the attempt to evade the proiibition to Statesof the right to tux imports, by nominally taxing tne occupation of an importer, he said:—it is impossible to conceal from ourselves that this is varying the form without vary- ing the substance, It is eating a prohibition which is yeneral us if it were confined to the particular mode of doing tic forbidden thing.” (12 Wheaton, 439) And in the same case he said:—“All must reeive that a tax on the sale of an article imported only for sale 13 a tax ou Lue article itself.” A Very luteresting attempt to lay an unconstitutional tax by evasion was made by the State of Maryland. ‘The United States Lank, by authority of tie charter, derived irom the general goverument, €stablished a branch bank in Maryland. Of course the State could not tax this branch} otherwise it might tax tt out of existence, aud destroy, or seriously linpair, within its own limits, the power of the geueral government to borrow money. ‘The State tried to evade the pro- hibition. by imposing the tax on the bills of the branch bank, ‘The Supreme Court decided that the tax on the bills was substantially the same thing as a tax on the bank. Chief Justice Marshall, with characteristic penetration, perceived that the ques- eae involved @ principle vital to the nation. He Bal . It we apply the principlo for which the State of Mary- land contends to the constitusion generally, we shall find it capable of changing totally the character of that instrument. We shal find it capable of arresting all the measures of the overnment and of prostrating it at the feet of the Sta.es. ican people have deciared their constitution and th laws made in pursuance thereof to be supreme; but this Brinesple would transfer the supreme power, in iact, to the tates, (Brown vs, Maryland, 12 Wheatoa, 439.) ‘The State of Maryland could have carried out the principle for which tt contended just as mischievously and just as destructively to the nationai credit and the national power by taxi the income as Db; taxing the bills of the bank; and if the income tax constitutional this could have been done. THE INCOME TAX THE FIRST FORM OF NULLIFICATION. Not only have other and similar shallow distinc tions been tried in the name and style of levying a tax for the purpose of evading the law, but the precise one adopted by Congress in laying the income tax is not uew, It was the form which nullification first assumed in the city of Charleston—its hotbed, If the Beiaelide of the income tax lad been ucquiesced in by the Supreme Court at that time tiere would have been no occasion even for States that wished a sepa- ration to resort to rebellion, ‘they could have ex- pelled the United states government from their tet ritory without ever firing a gun. And if the pri: ciple which was rejected there is to be adopted now the blood and treasure expended in the wer have becn spent for naught» We have a ju- dicial decision of tne question as it arose at tnat time, It came up in this way:—The City Council of Charleston, by authority of its charter, derived from the State of South Carolina, passed an ordi- nance which is thus descrihed by Judge Johnson, of the Supreme Court:—“ It‘4s true the act of the city of Charleston which imposes this tax is most cluinsily worded, But think it clear that, taken together, the object is to impose an income tax.” And thus by his associate on the bench, Judge Thompson:—*) “it isa tax upon the net income of interest upon money secured by bonds, notes, insurance stock, six and en per centum stock of tie United States, or other obligations on which interest has been re- ceived. * * it is, therefore, a general tax upon income of money at interest,” &c, Cluicf Justice Marshall and a majority of the court held that this taxing of the net income of United States siock was simply one method “of taxing and opposing the power of the egaugrers to borrow money.” The Supreine Court, iu this case, decided that when a State was pro- nibited from laying a tax on United States stock it could not evade the prohibition by laying the tax_on the income of the same and of other stocks. The same court have decided (3 D. 171) that the general government is proubited from laying an unappor- tioned tax on Iand; and tt would seem to follow that tis prohibition cannot be evaded by laying the tax ou the income of Jand and of other property, as is attempted by the present income tax. IT WOULD MAKE STATES SUPREME. If the United States conid evade the decision of the Supreme Court by laying the tax on the income of land, which is prohibited if latd on land, then the States which are prohibited from taxing imports, and exports and United States securities and offices un- der the general government, might evade the prohi- bition by taxing the incomes of all these; and if they could tax them for their own use one per cent they could tax them one hundred per cent, Says Chief Justice Marshall, in the case already referred to (2 Peters, 449):— If the right to impose the tax exists, itis aright which, in fia harare astnowlSigee ne tiaiea it may be cortloa to nag extent, within the jurisdiction of the State or corporation which imposes it, which the will of each State and Corpora- tion may prescribe. A power which 4s given by the whole American people for their common good, which is to be exercised at the most critical periods, for the most important purposes, on the free exercise of which the interests cer- be butdened) impeded i not attested, by any Of ibe orgese Ye 7 ized parts of the confederacy. cies And in another case Chief Justice Marshall say: “It is obvious that the same power which imposes a light duty can mmpose a very heavy one—one which amounts to a prohibition. * Jfit is to be exer- cised at ali, it must be exercised at the will of those in whose hands It is placed.” (12 Wheaton, 436,) That “the power to tax involves the power to destroy,” Judge Marshall — amo} “propositions not to be denied.” (4 Wheaton, rity) So says Daniel Web- ster :—* A power of taxation, without fixed limits, and without guards, isa power to embarrass, a power to oppress, a power to expel, a power to destroy.”” STATES COULD EXPEL THE GENERAL GOVERNMENT. Grant to the States the right to tax United States securities by imposing a tax of one hundred per cent on the income derived from them—and if the income tax is constitutional they have it—and what would such securities be worth in any rebellious State? Just as much as the bonds of the Southern Confed- eracy are worth to-day, and no more. Chief Justice Marshall, speaking of the provosed t#x on tie in- come of United States stock, said:—“It is a burden on the operations of government. It may be carried to an extent which shall arrest them entirely.” (2 P, 449.) Officers of customs are patriotic; but itis the olf of fat salaries which keeps the fame of their patriotism burning and bright. Let a State levy a tax Of one hundred per cent ‘on the income of these officers, and would there be such a strife as there now is for the privilege of serving the governmenc? Is it not plain that if you establisiva distinction between the right to tax a thing and the right to tax its income—a distinction without which the income tax is void—you place the credit and the power of the general government at the mercy of the separate States? Any disaifected State, by a system of taxation upon the in- comes derived from offjces under the general government within its own limits, upon in- comes derived from imports and from pee amounting, if meed be, to the sum total ol sucht incomes, could virtually expel the eral gov- erninent from its territory, and substantially accom. plish ail the injury which would attend its formal ithdrawal from the Union, South Carolina, in the nullification, wished to throw open the port arleston to the free importation of goods, She wanted to cacape the tari, but knowing that she did not possess sufficient military and naval force to keep the port of Charleston open she prudently de- sisted. If the distinction between taxing a thing and taxing its income, now attempted by Con- gress in the income tax, is law, how eas ie a tax of one hundred per on incomes of all United States officers, could she have banished these troublesome re- heed of the general government from her ers, and the very odor of the tariif with them. Or sq) she had said, if she could not have free, she would not have them at all. In addition to the tax apon the incomes of offices, she would only have had to impose a tax of one hundred on all incomes derived from imports and ail Incomes derived from exports to establish the most com- imaginable. Erect the principle which underlies the unapportioued income tax, without which it cannot be maintained, and any disatected State can paralyze the authority of the general government within the limits of its own ju- risdiction, And what disatfected States would do, could fates the will with the power, is it not written on the battle fleids of the rebellion? The brain of Calhoun, racked upon the subject for a juarter of a century, was impotent to invent ai loctrine so fatal to tue existence of the goverumen ‘The Union which the sword could not divide, which amillion of fighting men could not tear asunder, will be seen, by the inexorable logic of such a law, without the aid of sabre or cannon, of cavalry or in- fantry, silentiy but certainly to fall to pieces, If this is constitutional law Jefferson Davis m: selous but a more successful ally than he had in Robert E. Lee. State sovereignty over the national cere yd A Led ee og not, it a Fy Ca yy rebel canuon permauently by repu Bean legtiction “On tue woole, conslaering by whom the income paid, that to malaotain its constitutionality we must practically concede the whole doctrine for which the rebellion ‘wus waged, it seems to me, a9 a political and party ong) — io pet to ee Tint ae yal money by @ loyal Congress for the support the rebel armies. or ERRONEOUS NOTIONS OF THE ORIGIN OF THIS PRO- VISION. It has been contended that the Ay of the constitution, that direct taxes all be appor- toned to eos grew out of institation of siavery, and that the reason of the jaw having ce: he law should cease also, I know not whence those who advance this opinion derive their information, The apportionment of taxation to numbers existed under the out confederation, when the representation of the States inas at when one State was allowed just as many mem- bers of Congress as another, every State being en- titled to seven, It was adopted ment to the original articies of confederatio ‘and the conmnittes, consisting of Mr. Madison, M Ellsworth and Mr. Hamtiton, appointed vy Congress Lo recommend Ut (9 the States, say in chelr addgesd:— “This rule, though not free from objections, is Hable to fewer than auy other that could be devised.” REASON OF THE RULE. ‘The same reason which led to the adoption of this rule ander the old coniederation caused its preserva tion in the coustitution, which was that it was con- sidered the most just and equiiabie rule fur (he ap- poriionment of ‘taxes that could be made, The debates in athe Federal Convention show thls. When the question of the best mode of xp- portioning taxes. was under discussion Roger Sherman, of Conneciicu said be “thought the number of pedple alone the vest rule for wea- suring Wealth us well as representation.” (Eiti Debates, Vv, 297.) Mr. Gorham, of Massachusetts, “8up- ported the propriety of establishing uoimbers as the rule, He said that in Massachusetts estimates had been taken in tie different towns, and that persous had been curious enough to compare tuese estiuales with the respective numbers of people, and it had been found, even inelading Boston, that the most eXact proportions prevailed between numbers and property.’ (ibid, 300.) Mr. Wilson, a leading: member = from Peupsy lvania, sai He had seen the western settlements of Pennsylvania, and on #® comparison of them with the city of Philadeiphi« could discover little other die ference (han Uiat property was more unequally divided heie than there, ‘Taking the same umber in the aggrezute in the two situations he believed there would be littie difference in thew wealth aud ability to contribute to the public wants.” (Lid, 301.) Dr. Jonson, of Connecticut, “thought that wealth and population were the true, equitable rv'es of representation; but he conceived tat tie two principies resolved themselves info one, population being the bess measure of Wealth.” (ibid, 303.) And when the vote came to be taken in the Federal Convention ou tie proposition that direct taxation vugiil to be propor Uoued to representation, it passed without oppust- tion, = (Ibid, #2.) iteution of those who have supposed that tis provision of the coustitulien wa adopted wholly to promote the miterests of slavery, is invited to tie orival faci that when the rst direct tax was ui discussivn in Congress, Souta- ern Mmembers—conspicuous almosig Whom were duines Madison and George Nicholas, of \irgiMin—iusisied with unyielding pertinacity Ulat the lax shoud be Jaid Of siaves as Weill a3 upun land. PROPORTION OF DIRECT TAXES MUST BE EXACT. The jramers of the constitution iatended that the apportionment of direct taxes aimons Lie Stiles suvuld be in more exact ratio to the population even than it is possivle Lo apportion ie representation. For example: suppose oue representative to every ninety thousand Muhabitunts, a Siale might have wu large fraction left over; but the apportionment of direct taxes Was designed tu be with matieuiatical accuracy to the precise Dumber Of persons usver- tained by the census. ter the Urst appor- tiomment of representative wud been made in ile federal convention, by esiimated population, before an actual census, it was hed wnat the estimate of the pupuiation of Lhe diferent States was noi suill- cienuly accuraic for the apporuoument of a dire tax; ind that, consequently, the geucral gov couid not lay & direct tax u been taken, Elbridge moved that until a census be taken direct taxation be spportioned to the number of represeata- tives, Mr. Carroll, of Maryland, replied tat “the numer af representatives did not adinit of a proportion exact enough fora rule af tacation.” (Elliot's Debates, v., 451.) Mr. Elisworth “thought such arule unjust. There was a great dideren tween the numbers of inhabitauis as @ rule in tais case, Even if tue former were proportioned as nearly as possible to the latter it would be # very in- accurate rule, A State might have one represénta- tive only that had inhabitants enough for ove and a half or more, if fractions could be applied.” (ibis 403.) Mr. Gerry’s motion was deicatcd, The cou- vention, after debate, decided that direct axes must be apportioned in the Slates in snore exact yatio lo the population than the representation could pos sibly ve apportioned. (Elliot, V., 453.) Many of the leading patriots of the Revolution— Patrick Henry aniong them—were distrastiul of granting this power, even with the restriction placed upon ils exercise. Massactiusctts accompanied ber adoption of the constitution witit a resoluvion signed by John Hancock, whose name heads the list of sign- ers of the Declaration of Independence, recommend. ing an amendment of the constitution which ‘should prohibit Congress from Icvyiug u direct tux until tley should first have made @ requisition on the States. (1 Eliot, $23.) The same am ment, word for word, was recommended by the State of New York aud ‘he State of North Carolina, and similar resolutions by bouth Carolina and Riode Islaud vod Virginia, In the apportionmentof the direct taxes which had been laid by Congress previous to the income tax the ratio to the census liad been preserved with s lous accuracy. ‘Tie actual Use of tie aut the Lime of Ure Linposition of the ine accordance with We understi $2,003,918 %5.7 INJUSTICE TO NEW YORK. In 1850 the appo:tionment of representation was changed. The principles of a report on the subject, made several years previously in Congress by Dante! Webster, were adopted, and by their er the relative representauion of New York In the United Siates House of Representaives was reduced, to make it more accu ly proportioued to her popula- uon, Thus we pe ¢ that, 1, The comparative representation of New York in Congress was retuced by the apportionment of 1850, 2 It will be greatly reduced by tue increase about to take place in ihe representation of the Southern States, 3. That while our comparative representation is subjected to such reduction, the proportion of direct taxes levied upon the State has been more than doubled. in order to render tis kind of legisiation constitutional an amendment to the cor stitution would be required, to read as follows: “ Representatives aad direct taxes shall be dispro- portioned Lo each other 1” In. the apportionment of the direct tax of 1799 the suta put down to tire State of New York was one lundred eiguty-oue tousand six hundred eighty dollars seventy cents and seven mills; and in that of 1813 four huudred thirty thou- sand one hundred forty-one dollars and sixty-two cents. It will be seen that in laying all these direct taxes the requirements of the constitution were ob- served by apportioning tiem strictly according to the census, even to the fraction of a dollar. * THE ABOLITION OF SLAVERY NO REASON FOR CHANG- ING THE RULE. ‘The abolishment of slavery, so far from removing the reason for apportioning direct taxes to popula tion, creates an additioual cause why the Northern and Westera States should insist on aduering to it, ‘The former slaves, only thre ber was reckoned in apport are now counted tu full, the same a# Other persons, and the former slave States will gain by tts change ® large increase of representatives. Their propor- tion of direct taxes shaid be tnereased Ccorrespoa ingly, unless it is proposed to give the colored maa the ballot and at the same time exempt him from taxation; to make him not the equatof the wisite, but his superior; not merely “a man aad a brotier,” but @ man and a master. REBEL STATES DO NOT PAY. The unapportioned income tax ts us unequal and ‘unjust in its operation as it is unlawful in principle, Its burden rests almost entirely upoa the loyal portion of the viutry, as if it were de- signed as a punisiwent for patriotism and a reward, by way of peennury exemption, for treason. ne ten rebel States—Virginia, North Carolina, South Carolina, Georgia, Florid: Alabama, Louisiana, Mississippi, Arkansas am ‘Texas—paid of te tax collected in 1866 less than one per cent of the whole amount of the in come tax. The Eighth Congressional district of New York paid $5,350,751 49. Mississippi, the State of Jefferson Davis, paid, ali told, the enormous sum of $60, no fractions, At this rate the payment of the national debt, by an unap- portioned income tax, would be just about as easy, So far as the part of the rebel States te concerned, as repudiation. It is true that last year the rebel Staics did a litte better; and, for he own part, I cannot severely blame tuem, because they do not contend, as for a prize, for the privilege of paying @ tax, the prin- ciple of which was held to be unconstitutional when South Carolina put it to the test Aud not until some new priucipie of human nature, never yet dis- covered, shail be evoked, wiil men manifest extreme alacrity to pay for being wiped Heavy blows subjugate, but they can hardly be expected to quicken the conscience to a lively, sense of peca- niary obligation for the expense of dealing them, NEW YORK WRONGED OUT OF FLBVEN MILBION DOLLARS IN ONE YEAR. The income iax paid by the Righth Congressional district of New York in the yeur ending June so, 1867, amounted to $5405,67608, The Income tax paid by the State of New York, for the same year, Was $20,085,507 71. ‘This is more than qvuble the amount that the State would have had to pay had the tax been apportioned to the pena had required by the coustitution. By an ancoastitattonal law a sum amounting to Over ELEVEN MILMONS OF DOLLARS more than the just proportion wag taken from the pockets of citizens of the State of New York in the year 1967, That was the third year of this measure of injustice. And yet, during all the years that it has been perpetrated, the State has remained dumb on the subject on the foot of Congress, yoiceless in Bs Suan, aud voiveiess in the House of Represen- atives During the rebellion there was natarally a strong disposition to acquiesce in the measures of the gov- ernment. ‘This arose from noble and patriotic im. pulses. War has its own laws; but their sombre shadow should not be permitted ‘to rest on the con. stitution in time of peace. The feeling of patriotism which sanctions uncoustitutional lation merely because tt follows a patriotic ty as blind as the sentiment of reverence whea it to the worship of idols and to human seertiice. 1? CONCRRNS THE WHOLE PEOPLE, This Matter converns tae as well as the rich. If the rights of property cam be invaded with tin. ity ANd in dcuanee of coustitntonal law, the Freedom of the citizen will not long Termain secure, Rights of property aud — of person are insepa- rable; they exist or perish togetier, A slave who does not own himself cannot own any property. And just in proportion as a government readers th- secure the fruits of a man’s labor, Wiereby he maine tains his life and his independence, it Feduces him towards the condition of a Whenever the constitution fails ty prove an impenetrable shield to ‘all those rights of property over Which it extends, it ‘will cease forever to yield protection to liberty. tn the constitution it is written as bry as the Ten Com- mandments are written ta the Bible, that nu capitation or other direct tax shall be laid, uniess in propor. tion to the census. The income tax is a direct tax, 1 18 not laid in proportion to the census. It only ains for Congress £0 repeal the tex, or to appar. tion it according tq the consy 4 ‘Giaposition aus £ tingly of tie or stitation a3 4 mere bit of parchment. Let it be borue 12 mind i thougir it be, it is the only foundation of our government. ‘The fay = adoytlon of nt constitution Uurleen.@rigt Si the only act of forma ton of the pi t Union. The constitution breathed into this: nat bof iife, “But for the wuluority deriv teWe had no right, cliherk or moral, to wage our recent war and to crush rebellion. ‘The Constitution is the government. Se believed Abraham Lincoln, When hie had tazen the Presidenital oath to “preserve, protect. aud defend’ the constitution” he sid, “4 have: the niost soleum oath registered In¢leaven to preserve, protect and defend the government; and” so highly dia the State of New Vork approve this tnterpreration of the cath that she caused 1 to be painted in jarge 1. ers, siretching across the whole widta of her Assen Chamber above the portrait of Washington, tae te might coniront the sight of her representatives for- ever. jemember, O Congress! while the President of the Uniied States stands arraigned at the bar of the Senate, impeached by te Louse of Representatives: Tor the violation of hiw, the co! ny eae OF Ni same sittuiton, pried away by un act of legislation, ati reuains owt of place. WY. 0. BAHT LSPS Horeman House, New York, March, 1868, APPENDIX. Notes on the Carriage Case. HYLTON VS, THE UNITED STATES, 3 DALLAS, IL, It ts undoubtedly to the loose dicta of the Judges tn this case, to the effect that a capitation tax and a tax on land are the principal, if oot the oniy, direct taxes within the meaning of the constitution, that the general acquiescence in the ugappurtioned im come tax is in a great degree attributable. ‘The case was as follow: Hylton kept one hundred and twenty-five chariots; they were taxed by the Unitede States, and the Supreme Court held that the tax was indirect, aud did not require to ve laid according w the rule of apportioumeat, ‘The lecision of the partice ular case belore tue court was probably correct. lbia impossibie that a man could have kept so many car- riages for himself aud his family only to ride in; aud although he is S.ated im the report of the case te have kept them for his own use, it is presumed that the use referred to was the conveyance of passengers: for hire—in other words, that the vae hundred and twenty-five chariots pertained to a line of stage coaches, If this was the fact the tax was indirect,, for the taxpayer could charge it ali over tu his pase sengers by making @ slight addition to thew fare. But although the decision of the case before the: court appears, for We reason siated, to lave beem correct, positions were taken, fu the opinions of the Judges delivered ou the occasion, which ure whelige untenable, It is assumed, though Judge Chase is ‘careful te disclaim giving a judicial opinion on that point, “that the direct taxes contemplated by the constiia- tion are only two, to wit—a capitation or poll tax simply, without regard to property, profession, or a@ny oller circumstance, and a tax oy land.’” Judge Patterson first struck the constitation squarely in the face by declaring that “the rule of apportionment * * * is radically wrong; It cau~ not be supported by any solid reasoning.” He them Went on to comment on the observation of counsel “nat Congress may select in the diferent States aif Jerent articles or objects from which to raise the ap> portioned sum,” and he sald, “the idea is novet.. What! shall land be taxed In ove State, slaves in aa~ other, carriages in a third and horses in a fourth, of shall several of these be thrown together In order te levy andwwake the quutaed sum? 7'he scheme is fame eu Judge Iredell said:—Such an arbitrary method of taring digerent States dfereutly is a suygestion al- together new.” Point blank against these assertions | oppose the statements of the men who made the constitution and who fully expiained its meaning. in the debate on the provision of the constitution relatug to direct taxation, la the federal convention, Viiver Ellsworth suid:—“The sui allotted to a State may be levied without ditticulty, according to the plan used by the State in raising its own suppiies.”” (V, Hilovs De es, 305.) Mr. Kilsworth was not ouly 2 member ne federal convention, but he was one of the Committee of Deiail appointed by the convention te draft the constitution. He had been a member of Congress under the confederation, and par ticipated in the Important debates in that bedy om the subject of taxes, in the above lucid explanation: of the intention of this clause in tie Coustitulion, aa was, iu fact, only giving aut autioriiuuve interpretae tivn of the true meaning of his own well-considered, language—his Own and Unat of the other learned meg: on the Commitice of Detail with tun. On the mora ing of the very day upon which this case was de- cided, Mr. Elisworth was sworn in as Chief Justice of the Supreme Court of tue United states, Had participated in tie proceedings le might have con- curred in the decision, but it would Lave been tue possible for him to acquiesce in tue dicta of the judges, for werd were in direct contradiction to the proceedings of the federal conveniton, aud te bie own oilicial exposition of the meaning of this prove sion of the constitution; but he excused himsell from taking any part, on the ground that he had not heard the arguments in the case, « What were the sae used by the diferent States at that Lime in ralsiug Weir Own supplies, according to which Mr, Elisworth said dwect taxes, under the constitution, could be imposed? ‘They were v imilar in different Staves. in New York, Ki Isiand and Maryland they were imposed ou the mags of property, real and personal, with certain excep- tvus, In suine States ail tie stock of farms wae taxed; in others it was not taxed at ali; while m Olbers Still @ part of Lie stock was \axed, us horses in Virginia; und in sume viher States horses aud cathe, Jn Delaware the entire (ac woe upon _ income, Keport of Oliver — Wolcot Jr, Secretary of tue ‘reasury, on dit tax 1796.) im the Virginia convention es, wiitch ratilied the constitution Governor Randol said of the direct tax by tue general government, “it must be clearly latd on the mos: productive article in each particular State. * * * Were tie tax laid on cue unilorin aticie through tie Union its opera tion would be oppressive ou a Cousiderabie part of the people.” (iI. Eliot's Debaces, 121, 122.) Governor Randviph was on the commitioe with Mr. Klsworts in the federai convention appoiuted to drait the coa~ stitution. 5o we lave two mcnbers of that commit- tee—ihe Committee who drew up the constitutioa— making the same expianation of the clause about divect taxes, aud that expiauaiion at variance with Ue Interpretauion Of tne Judges iu the Hy lion case. ‘The carriage Case Was decided ai a very early day” in the history of tie Supreme Court, and beiore that court bad acguired tie high positivu i tue estunation: of the legal profession an we public Which it had since attained. One of the Judges, i deliver TI Opinion, Spcuks of it Huusell as a “cuscourse;” the] ail evince great Wau of Knowledge of Wie subje which they discuss. the crude speeches made ir the bench in this case uave acquired a degree of cum sideralion Which they du uot intriusically inerit. They shine in the borrowed light shed back upom them by the great titclect which for so many years illuminated the decisious of that tribumal—tie Mustrieus Marshaii—with Whose grandeur of tame: we naturally associate all ideas of the Supreme Court. Forvmately, however, we have the opiuiou of Jou Marsiall on this provisiou of tie coustituuion. It was a ae fully ta the Virginia Conven~ tion calied to ratify the consitution, und it accords. with Chat of Mr. blisworth aud that of Governor Kane dolph, and is entirely at variance with the views hn 1 have criticised of the Judges in the Hylton case, in the debate on the provision relating to direst. taxes James Monrve had acked:—* What are tie ob- jects of direct taxation? * * * Will the taxes be aid ou land? * * * Ave the community would escape. © extent of the power of iaying and collecting direct taxes? Doves if not yive to the United Sues au the resources of the indioidviat States 2” @ biliol’s Dew bates, 215, 216.) Judge Marshall said in auswer:— “Wrere ig Qu absurdity of having iirwen reven Willthey clash wit or jure each other? If nut, whe cannot Congress make Nirteen disinet laws, and ime pose the iaxcs Mm the general oljects af taxation eaeh State so 8 Ged al persons as he society shal Aly, ws they gurere 2) (IDI .) Tn addition tothe opinions thus clear by Eisworth and Mariel, who veld successive the office of Chief Justice of the Supreme Court of the United Sictea,} will cue unutner name whites Must be regarded? as second co none as au auchority for the true interpretwiion of the constuction, wink that hame is Jaines Madison, OF him Vumet Web ler said in a spoec!) delivered In Lids city 1h 18Gt:— Tf ever man lad tho moans strument, Mr. Madison his constintlon, I be poasivie tok Having Leen afterwards, (or ey) ¥ 0a It, he vao teil ts, Secretary of State aud as long President, Ar. Mw st alt had ab experi in the afaire of she second to no man, Mote than any ot! perbaps more than any other whu vas lived, him whole public life bas oven ineurporated, ae into the constitation ; in the origina, concept! fof atiomptine ty Corum Ht fo ite wotual (atu Ad recomme ating ft, Dy speaking amd writlig, 14 assisting, Ai tho tree organisation of the goverument wider Ny and ia e long on ts @xeontive power . toese Vert am wats be hae Vived near the constitution, wid wih ihe power bine spirit from i of of ite rue aad inhaling fis very orewth ta lirat pulsation of lie. Again, thererorty bask, u he cam ot tell ww what the cousitiation’ ty aut wha can? (Works of Dauber Webster, 1, 2s, Mr. Madison followed Join Marsa and he said:— It bas boen eald that ten men depnted from this State, amd others in proportion from osber Suites, will uot be ale to dev eet Unser 90 18 19 arouMunO War Ure ve stares States, Tconfeas 1 do not age the foree of tion. ** © They will be perfectly well I circumstances of the people of te dilfereat Sta 1 intaus wie . iu Une devate, med of tes anh mode of taxation that would be most, convenient ‘fort from the laws of the Binten. Jn iuyiny lanes fern ) “nm te ms. “ee ‘hy hon (Mr. fer wo the Stale ays ‘orable, frlend over, the | way Monroe), yesetange awemed to jection, were made be ist it dive fection would be unequal and unfair. Jy the ee ook AD coppers the 06 COR. ce ta i, But if this be not the ense it eam have ff {t should have @ general power of direct acted the met prop oigects Bad ‘a manner aa thal they should fall fi ane dies nity. Ye limi 1 inns oc Ra a ay