force of which will be felt and admitted by all. It is no hardship to any one to compel him to abstain from public blasphemy or other profanity, and none can complain that his rights of conscience are invaded by this forced respect to a prevailing religious sentiment. But the Jew who is forced to respect the first day of the week, when his conscience requires of him the observance of the seventh also, may plausibly urge that the law discriminates. against his religion, and by forcing him to keep a second Sabbath in each week, unjustly, though by indirection, punishes him for his belief.

The laws which prohibit ordinary employments on Sunday are to be defended, either on the same grounds which justify the punishment of profanity, or as establishing sanitary regulations, based upon the demonstration of experience that one day's rest in seven is needful to recuperate the exhausted energies of body and mind. If sustained on the first ground, the view must be that such laws only require the proper deference and regard which those not accepting the common belief may justly be required to pay to the public conscience. The Supreme Court of Pennsylvania have preferred to defend such legislation on the second ground rather than the first; but it appears to us that if the benefit to the individual is alone to be considered, the argument against the

1 "It intermeddles not with the natural and indefeasible right of all men to worship Almighty God according to the dictates of their own consciences; it compels none to attend, erect, or support any place of worship, or to maintain any ministry against his consent; it pretends not to control or to interfere with the rights of conscience, and it establishes no preference for any religious establishment or mode of worship. It treats no religious doctrine as paramount in the State; it enforces no unwilling attendance upon the celebration of divine worship. It says not to Jew or Sabbatarian, 'You shall desecrate the day you esteem as holy, and keep sacred to religion that we deem to be so' It enters upon no discussion of rival claims of the first and seventh days of the week, nor pretends to bind upon the conscience of any man any conclusion upon a subject which each must decide for himself. It intrudes not into the domestic circle to dictate when, where, or to what god its inmates shall address their orisons; nor does it presume to enter the synagogue of the Israelite, or the church of the Seventh

day Christian, to command or even persuade their attendance in the temples of those who especially approach the altar on Sunday. It does not in the slightest degree infringe upon the Sabbath of any sect, or curtail their freedom of worship. It detracts not one hour from any period of time they may feel bound to devote to this object, nor does it add a moment beyond what they may choose to employ. Its sole mission is to inculcate a temporary weekly cessation from labor, but it adds not to this requirement any religious obligation." Specht v. Commonwealth, 8 Pa. St. 312, 325. See also Charleston v. Benjamin, 2 Strob. 508; Bloom v. Richards, 2 Ohio St. 387; McGatrick v. Wason, 4 Ohio St. 566; Hudson v. Geary, 4 R. I. 485; Bohl v. State, 8 Tex. App. 683; Johnston v. Commonwealth, 22 Pa. St. 102; Commonwealth v. Nesbit, 34 Pa. St. 398; Commonwealth v. Has, 122 Mass. 40; Commonwealth v. Starr, 144 Mass. 359, 11 N. E. 533; State v. Bott, 31 La. Ann. 663, 33 Am. Rep. 224; State v. Judge, 39 La. Ann. 132, 1 So. 437; State v. Balt. & O. R. R. Co., 15 W. Va. 362, 36 Am. Rep. 803.

law which he may make who has already observed the seventh day of the week, is unanswerable. But on the other ground it is clear that these laws are supportable on authority, notwithstanding the inconvenience which they occasion to those whose religious sentiments do not recognize the sacred character of the first day of the week.1

Whatever deference the constitution or the laws may require to be paid in some cases to the conscientious scruples or religious convictions of the majority, the general policy always is, to avoid with care any compulsion which infringes on the religious scruples of any, however little reason may seem to others to underlie them. Even in the important matter of bearing arms for the public defence, those who cannot in conscience take part are excused, and their proportion of this great and sometimes imperative burden is borne by the rest of the community.2

Some of the State constitutions have also done away with the distinction which existed at the common law regarding the admissibility of testimony in some cases. All religions were recognized by the law to the extent of allowing all persons to be sworn and to give evidence who believed in a superintending Providence, who rewards and punishes, and that an oath was binding on their conscience. But the want of such belief rendered the person

1 Commonwealth v. Wolf, 3 S. & R. 48; Commonwealth v. Fisher, 17 S. & R. 160; Shover v. State, 7 Ark. 529; Scales v. State, 47 Ark. 476, 1 S. W. 769; Voglesong v. State, 9 Ind. 112; State v. Ambs, 20 Mo. 214; Cincinnati v. Rice, 15 Ohio, 225; Ex parte Koser, 60 Cal. 177; Parker v. State, 16 Lea, 478. A proviso in a Sunday law for the benefit of observers of Saturday is valid. Johns v. State, 78 Ind. 332. In Simonds's Ex'rs v. Gratz, 2 Pen. & Watts, 412, it was held that the conscientious scruples of a Jew to appear and attend a trial of his cause on Saturday were not sufficient cause for a continuance. But quære of this. In Frolickstein v. Mayor of Mobile, 40 Ala. 725, it was held that a statute or municipal ordinance prohibiting the sale of goods by merchants on Sunday, in its application to religious Jews "who believe that it is their religious duty to abstain from work on Sat urdays, and to work on all the other six days of the week," was not violative of the article in the State constitution which declares that no person shall, "upon any pretence whatsoever, be hurt, molested, or restrained in his religious sentiments

or persuasions." For decisions sustaining the prohibition of liquor sales on Sunday, see State v. Common Pleas, 36 N. J. 72, 13 Am. Rep. 422; State v. Bott, 81 La. Ann. 663, 33 Am. Rep. 224; State v. Gregory, 47 Conn. 276; Blahnt v. State, 34 Ark. 447; and of dramatic entertainments, see Menserdorff v. Dwyer, 69 N. Y. 557.

2 There are constitutional provisions to this effect more or less broad in Alabama, Arkansas, Colorado, Georgia, Illinois, Indiana, Iowa, Kansas, Kentucky, Maine, Michigan, Missouri, New Hampshire, New York, North Carolina, Oregon, and South Carolina, and statutory provisions in some other States. In Tennessee "no citizen shall be compelled to bear arms, provided he will pay an equivalent to be ascertained by law." Art. 1, § 28.

3 See upon this point the leading case of Ormichund v. Barker, Willes, 538, and 1 Smith's Leading Cases, 535, where will be found a full discussion of this subject. Some of the earlier American cases required of a witness that he should believe in the existence of God, and of a state of rewards and punishments after

incompetent. Wherever the common law remains unchanged, it must, we suppose, be held no violation of religious liberty to recognize and enforce its distinctions; but the tendency is to do away with them entirely, or to allow one's unbelief to go to his credibility only, if taken into account at all.1

CHAPTER XIV.

THE POWER OF TAXATION.

THE power to impose taxes is one so unlimited in force and so searching in extent, that the courts scarcely venture to declare that it is subject to any restrictions whatever, except such as rest in the discretion of the authority which exercises it. It reaches to every trade or occupation; to every object of industry, use, or enjoyment; to every species of possession; and it imposes a burden which, in case of failure to discharge it, may be followed by seizure and sale or confiscation of property. No attribute of sovereignty is more pervading, and at no point does the power of the government affect more constantly and intimately all the relations of life than through the exactions made under it.

Taxes are defined to be burdens or charges imposed by the legislative power upon persons or property, to raise money for public purposes. The power to tax rests upon necessity, and is inherent in every sovereignty. The legislature of every free State will possess it under the general grant of legislative power, whether particularly specified in the constitution among the powers to be exercised by it or not. No constitutional government can exist without it, and no arbitrary government without regular and steady taxation could be anything but an oppressive and vexatious despotism, since the only alternative to taxation would be a forced extortion for the needs of government from such persons or objects as the men in power might select as victims. Chief Justice Marshall has said of this power: "The power of taxing the people and their property is essential to the very existence of government, and may be legitimately exercised on the objects to

1 Blackwell on Tax Titles, 1. A tax is a contribution imposed by government on individuals for the service of the State. It is distinguished from a subsidy as being certain and orderly, which is shown in its derivation from Greek, ráğıs, ordo, order or arrangement. Jacob, Law Dic.; Bouvier, Law Dic. "The revenues of a State are a portion that each subject gives of his property in order to secure, or to have, the agreeable enjoyment of the remainder." Montesquieu, Spirit of the Laws,

b. 12, c. 30. In its most enlarged sense the word" taxes" embraces all the regular impositions made by government upon the person, property, privileges, occupations, and enjoyments of the people for the purpose of raising public revenue. See Perry v. Washburn, 20 Cal. 318, 350 ; Loan Association v. Topeka, 20 Wall. 655, 664: Van Horn v. People, 46 Mich. 183, 9 N. W. 246; [Re Page, 60 Kan. 842, 58 Pac. 478, 47 L. R. A. 68. See also note to 13 L. R. A. 533.]

which it is applicable to the utmost extent to which the government may choose to carry it. The only security against the abuse of this power is found in the structure of the government itself. In imposing a tax, the legislature acts upon its constituents. This is, in general, a sufficient security against erroneous and oppressive taxation. The people of a State, therefore, give to their government a right of taxing themselves and their propcrty; and as the exigencies of the government cannot be limited, they prescribe no limits to the exercise of this right, resting confidently on the interest of the legislator, and on the influence of the constituents over their representative, to guard them against its abuse."1

The same eminent judge has said in another case: "The power of legislation, and consequently of taxation, operates on all persons and property belonging to the body politic. This is an original principle, which has its foundation in society itself. It is granted by all for the benefit of all. It resides in the government as part of itself, and need not be reserved where property of any description, or the right to use it in any manner, is granted to individuals or corporate bodies. However absolute the right of an individual may be, it is still in the nature of that right that it must bear a portion of the public burdens, and that portion must be determined by the legislature. This vital power may be abused; but the interest, wisdom, and justice of the representative body, and its relations with its constituents, furnish the only security where there is no express contract against unjust and excessive taxation, as well as against unwise legislation generally." 2 And again, the same judge says, it is "unfit for the judicial department to inquire what degree of taxation is the legitimate use, and what degree may amount to the abuse, of the power." The like general views have been frequently expressed in other cases.

3

The Constitution of the United States declares that "the Congress shall have power to levy and collect taxes, duties, imposts, and excises to pay the debts, and provide for the common defence and general welfare of the United States; but all duties, imposts,

1 McCulloch v. Maryland, 4 Wheat. Sharpless v. Mayor, &c., 21 Pa. St. 316, 428. 147; Weister v. Hade, 52 Pa. St. 474; 2 Providence Bank v. Billings, 4 Pet. Wingate v. Sluder, 6 Jones (N. C.), 552; 514, 561.

3 McCulloch v. Maryland, 4 Wheat. 316, 430. See Kirtland v. Hotchkiss, 100 U. S. 491; Board of Education v. McLandsborough, 36 Ohio St. 227; State v. Board of Education, 38 Ohio St. 3.

4 Kirby v. Shaw, 19 Pa. St. 258;

Herrick v. Randolph, 13 Vt. 525; Armington v. Barnet, 15 Vt. 745; Thomas v. Leland. 24 Wend. 65; People v. Mayor, &c. of Brooklyn, 4 N. Y. 419; Portland Bank . Apthorp, 12 Mass. 252; Western Union Telegraph Co. v. Mayer, 28 Ohio St. 521.