Hylton v. The United States. 3 D. That this tax cannot be apportioned is evident. Suppose ten dollars contemplated as a tax on each chariot, or post chaise, in the United States, and the number of both in all the United States be computed at one hundred and five, the number of represent[*182] atives in congress, this would produce in the whole one thousand and fifty dollars; the share of Virginia, being 19-105 parts, would be one hundred and ninety dollars; the share of Connecticut, being 7-105 parts, would be seventy dollars; then suppose Virginia had fifty carriages, Connecticut two, the share of Virginia being one hundred and ninety dollars, this must of course be collected from the owners of carriages, and there would therefore be collected from each carriage three dollars and eighty cents; the share of Connecticut being seventy dollars, each carriage would pay thirty-five dollars. If any State had no carriages, there could be no apportionment at all.. This mode is too manifestly absurd to be supported, and has not even been attempted in debate. But two expedients have been proposed of a very extraordinary nature to evade the difficulty. 1. To raise the money a tax on carriages would produce, not by laying a tax on each carriage uniformly, but by selecting different articles in different States, so that the amount paid in each State may be equal to the sum due upon a principle of apportionment. One State might pay by a tax on carriages, another by a tax on slaves, &c. I should have thought this merely an exercise of ingenuity, if it had not been pressed with some earnestness; and as this was done by gentlemen of high respectability in their profession, it deserves a serious answer, though it is very difficult to give such a one. 1. This is not an apportionment, of a tax on carriages, but of the money a tax on carriages might be supposed to produce, which is quite a different thing. 2. It admits that congress cannot lay an uniform tax on all carriages in the Union, in any mode, but that they may on carriages in one or more States. They may therefore lay a tax on carriages in fourteen States, but not in the fifteenth. 3. If congress, according to this new decree, may select carriages as a proper object, in one or more States, but omit them in others, I presume they may omit them in all, and select other articles. Suppose, then, a tax on carriages would produce $100,000, and a tax on horses a like sum, $100,000, and $100,000 were to be apportioned according to that mode; gentlemen might amuse themselves with calling this a tax on carriages, or a tax on horses, while not Hylton v. The United States. 3 D. a * single carriage, nor a single horse was taxed throughout [*183] the Union. 4. Such an arbitrary method of taxing different States differently, is a suggestion altogether new, and would lead, if practised, to such dangerous consequences that it will require very powerful arguments to show that that method of taxing would be in any manner compatible with the constitution, with which at present, I deem it utterly irreconcilable, it being altogether destructive of the notion of a common interest, upon which the very principles of the constitution are founded, so far as the condition of the United States will admit. The second expedient proposed was, that of taxing carriages, among other things, in a general assessment. This amounts to saying that congress may lay a tax on carriages, but that they may not do it unless they blend it with other subjects of taxation. For this, no reason or authority has been given, and in addition to other suggestions offered by the counsel on that side, affords an irrefragable proof, that when positions plainly so untenable, are offered to counteract the principle contended for by the opposite counsel, the principle itself is a right one; for, no one can doubt, that if better reasons could have been offered, they would not have escaped the sagacity and learning of the gentlemen who offered them. There is no necessity or propriety in determining what is, or is not a direct or indirect tax in all cases. Some difficulties may occur which we do not at present foresee. Perhaps a direct tax, in the sense of the constitution, can mean nothing but a tax on something inseparably annexed to the soil, something capable of apportionment under all such circumstances. A land or a poll tax may be considered of this description. The latter is to be considered so particularly under the present constitution, on account of the slaves in the southern States, who give a ratio in the representation in the proportion of three to five. Either of these is capable of apportionment. In regard to other articles, there may possibly be considerable doubt. It is sufficient, on the present occasion, for the court to be satisfied that this is not a direct tax contemplated by the constitution, in order to affirm the present judgment; since, if it cannot be apportioned, it must necessarily be uniform. I am clearly of opinion this is not a direct tax in the sense of the constitution, and, therefore, that the judgment ought to be affirmed. WILSON, J. As there were only four judges, including myself, who attended the argument of this cause, I should [* 184 ] Hills Ross. 3 D. have thought it proper to join in the decision, though I had before expressed a judicial opinion on the subject, in the circuit court of Virginia, did not the unanimity of the other three judges relieve me from the necessity. I shall now, however, only add, that my sentiments in favor of the constitutionality of the tax in question have not been changed. CUSHING, J. As I have been prevented by indisposition, from attending to the argument, it would be improper to give an opinion on the merits of the cause. BY THE COURT. Let the judgment of the circuit court be affirmed. 18 H. 331; 7 Wal. 433. HILLS et al. Plaintiffs in Error v. Ross. 3 D. 184. It is not ground for reversing a decree of the circuit court in an admiralty cause, brought up on a writ of error under the judiciary act, (1 Stats. at Large, 73,) that the facts, on which the decree was founded, do not appear of record. THIS was a writ of error to the circuit court for the district of Georgia. On examining the record it did not show the facts on which the decree was founded. Cox and Duponceau, for the plaintiffs in error, contended for a reversal of the decree; Reed, (of S. C.) E. Tilghman, and Lewis, that as it did not appear the decree was erroneous, it should be affirmed. [*187] The court were unanimously of opinion that the error assigned was not a sufficient ground for reversing the decree, and recommended to the parties to come to some agreement, which might bring the matters in controversy fairly before them. After some conversation, an agreement took place between the counsel on both sides, that the cause should be continued to the next term; and that, in the mean time, new evidence [188] * might be taken on both sides, and the whole matter of fact, as well as the law, brought before the supreme court of the United States, as upon an appeal.1 3 D. 331. 1 See the same case, 3 D. 331. M'Donough v. Dannery. 3 D. M'DONOUGH v. DANNERY, and the Ship MARY FORD. 3 D. 188. If a captured vessel is abandoned at sea by the captors, and being thus derelict, is taken possession of by a neutral and brought into a neutral port, and libelled for salvage, the district court has jurisdiction to entertain such libel, and ex necessitate, may also adjudicate upon the conflicting claims of the captors and former owners, to the surplus in the registry. In such a case the claim of the captors was allowed, as no neutral nation can impugn or destroy the right vested in the belligerent by the capture. THIS was a writ of error to the circuit court of the district of Massachusetts, in a cause of salvage. The Mary Ford, belonging to subjects of Great Britain, was captured by a French squadron, her officers and crew removed, and after an unsuccessful attempt to destroy her was left derelict at sea. In this state she was fallen in with by the ship George, belonging to the port of Boston, the mate and three of the crew of the George went on board the Mary Ford and brought her safely into Boston, where she and her cargo were libelled for salvage in the district court. The consul of his Britannic Majesty intervened for the original owners, and subsequently the consul of the French Republic intervened for the captors. The vessel and cargo were sold by consent, and a decree having awarded to the salvors one third of the proceeds, the remaining two thirds were by the district judge decreed to the original owners. Upon appeal to the circuit court, by the captors, the decree of the district court was reversed, and the surplus, after payment of the salvage, was adjudged to them. To examine this last decree the present writ of error was brought by the British consul. The cause was argued by E. Tilghman, for the plaintiff in error, and by Ingersoll, and Duponceau, for the defendants. * BY THE COURT.— We are unanimously of opinion that [* 198 ] the district court had jurisdiction upon the subject of salvage; and that, consequently, they must have a power of determining to whom the residue of the property ought to be delivered. In determining the question of property, we think, that immediately on the capture, the captors acquired such a right as no neutral nation could justly impugn or destroy; and, consequently, we cannot say, that the abandonment of the Mary Ford, under the circumstances of this case, revived and restored the interest of the original British proprietors. Ware v. Hylton. 3 D. Some doubts have been entertained by the court, whether on the principles of an abandonment by the French possessors, the whole property ought not to have been decreed to the American libellants, or, at least, a greater portion of it by way of salvage; but as they have not appealed from the decision of the inferior court, we cannot now take notice of their interest in the cause. Upon the whole, let the decree be affirmed. 1 W. 238 [ * 199 ] WARE, Administrator of JONES, Plaintiff in Error, v. HYLTON et al. 3 D. 199. The fourth article of the definitive treaty of peace, between the United States and Great Britain, concluded on the 3d of September, 1783, (8 Stats. at Large, 80,) enables British creditors to recover debts, previously contracted to them by our citizens, notwithstanding a payment of the debt into a State treasury had been made during the war, under the authority of a State law of sequestration. THIS was a writ of error to the circuit court for the district of Virginia. The action was debt on a bond, and the question raised and argued was, whether payment of a debt due before the war of the revolution, from a citizen of Virginia to British subjects, into the loan office of Virginia, pursuant to a law of that State, discharged the debtor. The cause was argued by E. Tilghman, and Wilcocks, for the plaintiff in error, and by Marshall, of Virginia, and Campbell, for the defendants in error. * [ * 220 ] The court, after great consideration, delivered their opinions, seriatim, as follow: CHACE, J. The defendants in error, on the 7th day of July, 1774, passed their penal bond to Farrell and Jones, for the payment of £2,976 11s. 6d., of good British money; but the condition of the bond, or the time of payment, does not appear on the record. On the 20th of October, 1777, the legislature of the commonwealth of Virginia passed a law to sequester British property. In the third section of the law, it was enacted, "That it should be lawful for any citizen of Virginia, owing money to a subject of Great Britain, to |