argument can be deduced against this right from an unsuccessful attempt to collect a tax upon a subject beyond its sovereignty. The question is not whether any burden can be placed upon land or other property by taxes levied by the rule of uniformity, but whether such burden be "direct taxation" or not within the meaning of the Constitution. Indeed, Mr. Justice Brown, in his dissenting opinion, after admitting that "a tax upon the rents or income of real estate is a tax upon the land itself, "— a proposition which, it is submitted, is not true, - goes on to say: "But this does not cover the whole question. To bring the tax within the rule of apportionment, it must not only be a tax upon land, but it must be a direct tax upon land. . . . It does not follow . . . . . . that that every tax upon land is a direct tax. . . It seems to me that it could hardly be seriously claimed that a tax upon the crops and cattle of the farmer, or the coal and iron of the miner, though levied upon the property while it remained upon the land, was a direct tax upon the land. A tax upon the rent of land in my opinion falls within the same category. . . . While . . . it is a tax upon land, it is a direct tax only upon one of the many profits of land." It is evident that the argument of the learned Chief Justice proves too much, for it proves that any tax levied upon any property or upon any proceeds of property is a "direct tax," and therefore cannot be levied by the United States except by the rule of apportionment.

The argument based upon Lord Coke's statement to the effect that land is nothing but the profits thereof: 2 that a tax on rents is a "direct tax " upon the land, is, it is submitted with all deference, a complete non sequitur. For here the tax was upon rents already received, and no one can contend that the gift or sale or devise of such would pass the land itself, as a general conveyance or devise of all rents does. Even where there is a limited gift of rents, it does not pass the land,3 and it is well settled that a tax upon rents and a tax upon the land itself are not double taxation. Besides, a tax upon the income derived from land or upon its beneficial use is by no means analogous to a grant of the entire beneficial use. The one is a yearly and transient levy, the other is a grant of a interest in the land.

1 158 U. S. 692.

2 Co. Lit. 4 b.; 157 U. S. 580.

3 Fox v. Phelps,17 Wend. 393; 157 U. S. 589-590; 157 U. S, 646; 158 U. S. 667; 158 U. S. 692.

With regard to the historical argument in support of the judg ment of the Court, besides the passages already quoted verbatim and others summarized as indicative of the historical material cited and relied upon by the learned Chief Justice, the following is his own summary of the results of his elaborate historical researches: "From the foregoing it is apparent : I. That the distinction between direct and indirect taxation was well understood by the framers of the Constitution and those who adopted it. 2. That under the State systems of taxation all taxes on real estate or personal property or the rents or income thereof were regarded as direct taxes. 3. That the rules of apportionment and of uniformity were adopted in view of that distinction and those systems. 4. That whether the tax on carriages was direct or indirect was disputed, but the tax was sustained as a tax on the use and an excise. 5. That the original expectation was that the power of direct taxation would be exercised only in extraordinary exigencies, and down to August 15, 1894, this expectation has been realized." 1

In regard to number five of this category of propositions it may be enough to say that it is scarcely an argument. Given the power of Congress to lay and collect a general income tax, no court can stipulate the time when that power shall or can be exercised. That is solely a question of expediency to be solved and determined by Congress alone. Moreover, it is conceived that if Congress has no power to levy certain taxes except in certain ways in ordinary times of peace, it has no power to levy them in other ways in time of war, and so nothing is gained by the fact insisted upon by the learned Chief Justice that all the prior income and direct taxes, which have been levied by Congress according to the rule of uniformity, were war measures.2

With number four of the above heads no quarrel can be had. Number three depends solely upon the validity of numbers one and two, and is a corollary to them.

If the question were not fundamental, lying at the very root of the whole subject, it would perhaps be enough to cite a sentence. from the opinion of the Chief Justice, found ten pages prior to that upon which is contained proposition one, in answer thereto. The Chief Justice writes: "Mr. Madison records: 'Mr. King

asked what was the precise meaning of direct taxation. No one answered.'" Furthermore, it most definitely appears that no one then knew what the term "direct taxes" actually meant. No two of the members of the Constitutional Convention and statesmen of that time gave the words the same interpretation. And it can confidently be affirmed, with all deference, that no one has ever known or does now know with certainty all that the term implies. The Supreme Court of the United States on May 20, 1895, stood divided upon the question five to four.1

But the question is deeper than this, and cannot be thus cavalierly disposed of.

It seems to me that nothing is gained by the elaborate and exhaustive researches which have been made into the debates and writings in regard to the clauses relating to taxation in the Constitution. These researches have only proved that some men held one opinion in regard to the meaning of "direct taxes," and some another, and that some changed their opinion. It is not of very great importance that James Madison believed that the Carriage Tax Act of 1794 was unconstitutional, and that later, when President of the United States, he signed bills passed by Congress which provided for the exaction of the same kind of taxes.

But,

if it be important, as the majority of the Supreme Court seem to think, the facts as to Mr. Madison's opinion and change of opinion certainly strengthen the argument for the constitutionality of the income tax. It is a man's final opinion that is of the greatest weight, as it is a court's, especially when the man and the court have overruled their former judgments.

Every one knows, who knows anything at all about our constitutional history and constitutional law, the facts and considerations and conditions which led to the framing and adoption of our Constitution. It would be idle to reiterate them here. In the light of those circumstances the Constitution is to be construed, and in the light of those alone. All the arguments and citations were before the Supreme Court of the United States in Springer v. United States, which were presented to it in the case under discussion, but did not appear to be of any great weight to the then members of the Court. Indeed, it is submitted, with the greatest deference, that the weight given to Madison's original opinion

4 102 U. S. 586.

1 157 U. S. 559, 562, 563, 565-572; 158 U. S. 620, 622-629; 158 U. S. 649. 2 158 U. S 699. 3158 U. S. 649.

❝ 157 U. S. 636.

by the present learned Chief Justice of the United States is due to the fact that it has unfortunately escaped his notice that Madison's final opinion was in favor of the constitutionality of such acts as the Carriage Tax Act. And it is further conceived, with the greatest deference, that too much weight was given to the learned and brilliant brief of Alexander Hamilton, who appeared for the United States in Hylton v. United States.1 He was Secretary of the Treasury when the Carriage Tax Bill was passed, and his brief and argument in support of that act, by making a limited contention, ought not to be taken as his whole opinion. But even in that brief he says, as quoted by Mr. Chief Justice Fuller: "The fol lowing are presumed to be the only direct taxes: Capitation or poll taxes, taxes on lands and buildings, general assessments, whether on the whole property of individuals or on their whole real or personal estate."2 Thus evidently meaning that a tax to be "direct" must be levied upon the whole real or personal property of all the inhabitants.

Provision is made in the Constitution for the levy and collection of all kinds of taxes known at the time of the making and adoption of that instrument. Excises, imposts, duties, capitation and direct taxes are all authorized eo nomine, and provision made for their assessment. If it be true that there are direct taxes which may be levied under the Constitution uniformly and not by apportionment, it is apparent that the term "direct taxes" in that instrument must have a limited and special meaning. Now, besides capitation taxes, which necessarily are direct, and which by the terms of the Constitution are to be levied by the rule of apportionment, if there ever was a direct tax, it was the carriage tax, the constitutionality of which was supported in Hylton v. United States,3 and the succession tax levied by the Act of June 30, 1864, and supported in Scholey v. Rew,5 both of which were levied under the rule of uniformity. It is begging the question utterly to call them excises. Indeed, the remark of the learned Chief Justice in Pollock v. Farmers' Loan & Trust Co., that "what was decided in the Hylton case was, then, that a tax on carriages was an excise, and, therefore, an indirect tax," is, it is submitted, totally unintelligible, unless it is meant thereby that the carriage tax was not a "direct tax" within the meaning of the Constitution.6

13 Stat. 287; 14 Stat. 140, 141

1

3 Dall. 171.

4

2

3

5 7 Hamilton's Works (Lodge's ed.), 332; 157 U. S. 572. 3 Dall. 171.

23 Wall. 331.

6

158 U. S. 627.

The question therefore arises what is the limited meaning of the words in the Constitution?

It seems apparent on the face of the Constitution that the framers of it meant to indicate specifically all the different methods and forms of taxation, and to prescribe the manner in which each should be collected. Excises have been levied and collected according to the rule of uniformity, regardless of the fact that they were also direct taxes. It is strange that the form of direct taxation which was then most common and best known-namely, taxation of land -should not have been named or referred to. Indeed, it seems to have been almost the only subject of direct taxation by the States.1 It is hardly possible that it could have escaped the attention of the Constitutional Convention, and it is conceded upon all hands that a direct tax upon land must be apportioned. If it be true, as is stated by Mr. Chief Justice Chase in Veazie Bank v. Fenno, that in many, if not all, of the Southern States slaves were considered and held to be real property, it follows that direct taxes on slaves would have to be apportioned. If there be validity in this suggestion, which seems to have escaped the notice of the learned counsel who argued the cause, and of all the members of the Court, we find again in this curious provision with regard to "direct taxes" the evasion of the Constitution as to slavery. But, if this be not so, and slaves were considered to be personalty, as seems to have been the case in the five original slave States, except Virginia, still slaves are denominated as "persons" in the Constitution, and as such are clearly subject to capitation taxes, Veazie Bank v. Fenno, 5 which must also be apportioned. Indeed, no tax upon slaves is conceivable that is not a capitation tax, unless it be a license tax. And this suggestion is borne out strikingly by the early statutes of the United States, which levied 3158 U. S. 650.

4

158 U. S 686 ; 158 U.S. 699; 158 U.S. 701. 28 Wall. 533, 543

♦ I am indeb ed for the greater part of the material for this note to Mr. James Parker Hall.

Slaves were made real property in Virginia by Stat. 1705, c. 23, § I. 3 Hen. 333. See also Stat. 1727, c. 11, § 3. 4 Hen. 222. Slaves were declared to be personal property in South Carolina by Stat. 1740; 3 S. C Stat at I arge. 568; and in Georgia by Stat. 1770, c 203, § 1; Dig. Laws of Georgia, 163. Apparently there was no legisla tion on the subject in Maryland or North Carolina, at least neither Mr. Hall nor I have be n able to find any. While there is no direct adjudication upon the point in either of these two latter States, the cases seem to assume that slaves were chattels See Hurd's Law of Freedom and Bondage, chap. vi., p. 222.

58 Wall. 533, 543.