demand any percentage of incomes, any sums as license fees for carrying on particular business, any portion of the amounts paid upon sales any value of stamps upon written instruments or articles of merchandise. The only limitation is, that the rule of uniformity must prevail throughout the United States. This rule does not require that all trades, businesses, merchandise, written instruments, and the like, shall be taxed alike,1 or even taxed at all. It means that when an impost is placed upon one article, the same burden shall be borne by that subject in all parts of the country. Congress may discriminate between articles in all the several species of indirect taxes; the discrimination may be unfair and impolitic, but it is not illegal.

§ 288. There can be no question of the correctness of these general propositions; they are universally admitted. But there has lately arisen a question growing out of our new scheme of revenue legislation, which should be briefly discussed. Congress has provided, in the internal revenue laws now in operation, that stamps of various denominations. shall be affixed to certain private written instruments; and as a penalty for a violation of the statute, has declared that instruments which are without the requisite stamp shall be void. There is no doubt as to the power of the national legislature to pass such a law. Stamp duties are, and long have been, a familiar species of excises, and the power to lay and collect such taxes implies the power to enforce obedience by imposing any penalty or punishment that may be thought necessary. A law without a sanction would be no law. There has been, therefore, a general acquiescence in the legality of these provisions.

§ 289. But in the same law Congress provided that stamps of a certain denomination should be affixed to divers papers used in judicial proceedings; and as a penalty for a disregard of the requirement, declared that the papers lacking the appropriate stamp could not be used in the suit or in 1 Therefore a law may constitutionally provide for one rate of taxation for all railroad companies, and a different one for all individuals. State Railroad Tax Cases, 92 U. S. 575. ED.

the course of the proceeding. This law was made applicable to controversies and other matters in state courts. The public, the bar, and the judiciary, generally acquiesced in the lawfulness of this species of taxation. A few state courts, however, have denied its legality, and pronounced it unconstitutional. The Supreme Court of Indiana, in the case of Warren v. Paul,2 led the way in this opposition to the Congressional legislation, and the judges of other states have adopted its conclusions. These judges and courts have rested their objections upon some assumed sacred character of judicial proceedings which exempts them from taxation. They have quoted certain writers upon political economy who pronounce such a stamp duty to be a tax 'upon justice. They have affirmed that Congress, by placing an impost on papers used in matters pending before the state tribunals, has interfered with, and endeavored to control, a subject entirely beyond its reach.

§ 290. It should be remarked that this is a question which must be decided in an authoritative manner by the Supreme Court of the United States, and until their decision, all reasoning upon the statutory provision must be, to a certain extent, speculative. But I have no doubt as to the legality of this application of stamp duties. The grounds of this opinion are, briefly, as follows:

Even granting that such stamps do not fall within the category of ordinary excises, they are unquestionably a species of tax; and the national legislature has full and complete powers conferred upon it in the general provision that it may lay taxes. What kind of taxes is not designated; all kinds are included.

But, in fact, these stamps are excise duties as much as those affixed to notes or deeds. To say of them that they are a tax upon justice, is only to call them hard names. does not change their character as excises; it is only a strong

It

1 Although these provisions have been lately repealed, yet, as the subject is one of so great importance, at least as a matter of speculation, the discussion is retained in the text.

2 22 Ind. 276.

expression of opinion that they are impolitic. Mr. John Stuart Mill, when he used this language, was only discussing the kinds of revenue laws which enlightened legislative bodies ought to pass, not those which they have power to pass. The stamps in question are really taxes upon property.

§ 291. Notes, deeds, and other instruments are the means by which persons acquire and hold a title to property. The papers in judicial proceedings are just as truly the means by which persons acquire, hold, or defend their title to property, or rights which result in property, or in property's worth. No court attempts to enforce a right which does not immediately or mediately result in property. Stamps on papers used in judicial proceedings are, therefore, not taxes upon the administration of justice, but taxes upon property or property rights. A note or check is given. This writing is only valuable as it shall result in a certain sum of money or money's worth. The law assumes this value and demands a tax thereon corresponding in amount. A person brings a suit to recover a debt, or damages for a wrong, or some specific land or chattel, or to acquire or protect some right having an intrinsic money value. The process he issues is one means by which he may attain the object of his contention; it has value only so far as it shall result in obtaining that object. The law assumes this value, and demands a certain sum for the privilege of issuing the process, This is certainly a tax on property, and not upon that series of acts which we call the administration of justice. And if Congress may lay the tax at all, there is no dispute but that they may enforce its payment by declaring the proceeding void in which the requisite stamp is wanting.

§ 292. It has also been urged that if Congress may thus impose a tax in connection with the judicial proceedings, they might also in connection with the legislative proceedings of a state, and might declare void a state constitution or statute, when the paper upon which it was engrossed was not authenticated by a stamp. There is really no analogy between these cases. Congress does not impose taxes upon the acts, as such, of public functionaries, whether they are

legislators, judges, or administrative officers. With the single exception of capitation taxes, all imposts are laid upon the private property of citizens. Judicial proceedings are not taxed because they are judicial proceedings, but because they are the direct means of obtaining property or rights which have a value as property. Statutes and constitutions are not the representatives of property. Existing as laws, they are only rules of conduct, and have no taxable quality.

§ 293. The objection, that Congress, by imposing stamp duties upon papers used in the judicial proceedings of state courts, is thereby interfering with matters over which it has no control, if well founded, would strike at the very foundation of the whole system of excises. It is true that the Constitution does nowhere give Congress the right to interfere directly with state courts or laws, so as to control their action. Neither does it confer the power to interfere directly with the trades, professions, property, transfers, sales, and other contracts of private individuals. All these subjects are among the matters confided to the states. But as these matters all stand upon the same foundation, the unlimited power to tax gives a right to interfere with and control them all indirectly, so far as may be necessary to make the tax effective, and to raise the desired amount of revenue. There is, in truth, no legal objection to the taxing of judicial papers which does not apply with equal cogency to the imposition of stamp duties upon private agree

ments.

§ 294. Since the power to tax is unlimited where Congress has the right to invoke it at all; or, in other words, since the legislature may demand and receive any amount of revenue, when the purposes are such that revenue can be appropriated for them at all, it is an interesting question, for what purposes money may be appropriated; and this is the same as asking for what purposes money may be raised. Growing out of this general inquiry, many controversies have arisen which have divided political parties, and which have been maintained both upon the policy of particular measures, and upon the constitutional power of Congress to

pass them. I shall simply state a few of these questions without examining them. They partake so much of a mere political character that their place of discussion is rather the legislature, or the popular assembly, than the college class-room, the law school, or the court. Under the general grant of power to lay and collect duties and imposts, may Congress lawfully pass a protective tariff? Under the general provision that taxes may be laid to provide for the common defence and promote the general welfare, may Congress raise moneys to carry out schemes of local internal improvement, repair harbors, build piers, dredge out rivers, construct roads, and the like?

§ 295. The dispute upon these questions has been long and violent. It has been urged on the one side that a protective tariff is not a measure for the general welfare, but for the aid of particular classes; that schemes of local improvement do not benefit the whole nation, but only special portions. On the other hand these propositions are denied, and it is claimed that the fostering of one department of industry promotes the welfare of all; that the improvement of New York harbor, for example, produces a beneficial effect throughout the entire Union. It is plain, therefore, that the controversy reduces itself finally to a question of policy, and not of power. If these systems of legislation, which directly and immediately assist a part, do really and substantially aid the whole, the power evidently exists; and whether or not they do in fact promote the general welfare is purely a question of political economy, upon which statesmen have differed, and doubtless will continue to differ.

I may remark, however, that so far as a course of legisla tive action can settle anything, the power of Congress to pass such measures may be considered as established.

§ 295 a.1 Many cases have arisen within the past few years involving the taxing power. Some of these are of the first importance, depending upon the relations of the federal and the state governments in their respective exercise of this

1 The three following sections were originally a part of the Appendix, but are now inserted here. ED.