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or predict that of the court, and one with which lawyers hope that the court will never be faced.

Whether the judges of 1796 were right in declaring a duty upon the use of personal property not to be a direct tax within the meaning of the instrument which they had helped to frame, whether their successors of 1880 were right in holding that a general duty upon net incomes was for the same reason not a direct tax within the meaning of that instrument, is a question which will always be interesting in itself even if it be deprived of practical importance by constitutional amendment, because it is a question of history as well as of law. Indeed the prevailing opinion of 1895, so far as it is not shaken by the later decisions, seems to me to be based upon a purely historical line of reasoning, whose acceptance by the ultimate verdict of historians I think a matter of doubt. Upon matters as to which the Supreme Court of the United States was as nearly as possible equally divided, a confident expression of opinion would be presumptuous in any one, and especially in one who took part in the litigation. His function is rather to call attention to the various phases of the case, and leave others to follow up his suggestions. If the contemporary understanding of the tax clauses of the Constitution comes ever under complete investigation according to the recognized canons of historical criticism, a vast amount of material will be found on file in the income tax cases of 1895; but it will probably not be found complete. Probably no question of such difficulty and importance was ever presented with so little time for preparation. Upon the part of the complainants a considerable number of quotations, favorable to their view, from the controversial writings and private correspondence of the statesmen of the eighteenth century were submitted, and some of this was incorporated into the prevailing opinions. These quotations were as far as possible investigated by the government, but time did not permit of any considerable independent search for such material, although some was added both by the government and by the judges. I think it especially a matter of doubt whether the future critic will agree with the majority of the court as to the relative weight to be given to the various classes of historical evidence considered; and he will claim the right to an independent judgment,

1 The petition for rehearing was filed April 15. The court set the application for May 6, and then directed that the argument proceed forthwith. The case was decided May 20 (158 U. S. 601, 605-7).

because the ascertainment of an eighteenth century definition is more peculiarly a matter of history than of law. I think that in balancing them against the practical construction given to the Constitution by the Washington and Adams administrations, and against the Hylton case, he will give less weight to the fragments of half-reported debate in the state ratifying conventions. Giving them any weight at all is an exception to the rule which excludes even stenographically reported debates upon the passage of a law, because for various reasons they are so apt not to represent the general consensus of opinion in the legislature as to its meaning: 1 Not only is the reporting so unsatisfactory," but an examination into the details of the Constitution was not primarily the business before these state conventions. They could and did propose amendments, but the main purpose of the men who were most familiar with the Constitution and most interested in procuring its adoption was to get it through the state conventions with as few amendments as possible, and therefore to let sleeping dogs lie. Thus it was intended to give Congress the power to levy stamp duties, but members were desired to say as little as possible on this unpopular subject, and if fully reported Ellsworth observed this precaution in his explanation to the Connecticut convention. The debates in these conventions, so far as reported, were generally on broad lines, and so far as taxation was concerned were occupied with the discussion of the principal taxes with which the minds of the delegates were familiar, without stirring up the question what taxes might conceivably be laid in addition. The same is to be said of such controversial writings as the Federalist, which was published for a present purpose, and was not written consciously to be a permanent classic.

In taking up the discussion it is to be borne in mind that we are studying the terminology of the eighteenth century, and must use with caution any definitions framed by courts or text-writers of a century later. In this connection we must remember that no in

1 Aldridge v. Williams, 3 How. (U. S.) 9, 24; United States v. Trans-Missouri Freight Ass'n, 166 U. S. 290, 318. The reasons are explained by Story, J., in Mitchell v. Great Works Milling Co., 2 Story (U. S.) 648, 653; Field, J., in Leese v. Clark, 20 Cal. 387, 425; County of Cumberland v. Boyd, 113 Pa. St., at 57.

2 P. 280, supra.
3 Luther Martin's Report to the Maryland Legislature (1 Ell. Deb., 2 ed., 368).

2 ibid. 191-6.
158 U. S., at 686, 699. But see pp. 622, 630, 631.



come tax in the present sense of the phrase, that is, no tax on net incomes or even on gross incomes by actual computation, had yet been laid, so that the delegates are not to be presumed to have had it in mind at all. England had only laid a specific duty on salaries and pensions. The colonies and states had, some of them, in assessing all property for purposes of taxation, included the appraised value of one's profession or trade in the assessment list, while the valuation of property was often reached by calculations based upon an estimate of the value of its annual user.

It will be noticed in the judicial opinions of 1796, as in the argument of Mr. Hamilton at the bar of the court, that they discussed two different distinctions: first, between direct and indirect taxation; and second, between direct taxes on the one hand, and duties, imposts, or excises on the other. Indirect taxation is not, however, mentioned in the Constitution itself, and nothing in the Constitution requires us to give it a legal definition. The other distinction is the only one to be found in that instrument. The distinction between direct and indirect taxation belongs, or belonged (if it is obsolete), to political economy, not to law. Political economy was then in its infancy. Some statesmen, Hamilton and Wilson as well as Morris, were familiar with the new speculations. But most of the leaders in the convention of 1787 were primarily lawyers, who naturally looked at constitutional language from a lawyer's point of view. These would look first at the colonial and state laws of their own homes, and secondly at those of Great Britain," whence we take our general ideas of taxes, imposts, excises, customs, etc.,"2 and with which they were then, more than their successors are now, familiar. The first would give no definitions upon which all would agree. The second would. I think that they meant by taxes those things which in the English statute book were then called taxes, and that they meant by duties those things which in the English statute book were then called duties, although endeavoring not very successfully to identify the latter class of impositions with those which

1 158 U. S., at 701. Seligman, ut supra. Probably this is the tax to which Sedgwick was referring in 1794 as on property and income generally.” His colleague Dexter so understood him (157 U. S., at 568).

2 P. 283, supra.
3 Wolcott, ut supra. Seligman, ut supra.

4 If this view be correct, there was no misunderstanding between Hamilton and the Supreme Court as to the point that he was arguing, as supposed at 158 U. S. 626.

the new science of political economy was then classifying under the head of indirect' taxation.

In Great Britain the words “tax” and “duty" had had legal definitions for a century, exclusive of each other, settled and unvarying in their statutory use.

A tax was laid upon all property, or upon all real property, at a valuation, and always by a rule of apportionment. The only “tax” in actual use was the general land tax. Everything that was not a tax in this restricted sense was a duty. No duties were laid by any system of apportionment. All were laid by a rule of uniformity. This unvarying distinction in terms in the statute book cannot have been accidental, and must have been familiar to lawyers. Editions of the English statutes were not uncommon in the American law libraries. Pickering's edition came down to 1761 and was printed in 1764 and afterwards continued from that time. This contained the entire text of each act laying a new tax or duty, and contained by title the acts continuing without change the taxes or duties previously levied. The whole subject had been one of great prominence during the years immediately preceding the Revolution, and the act most discussed was the one levying stamp duties affecting real as well as personal estate. Our lawyers were then also familiar with the Commentaries of Blackstone, which had been published in 1765 and have been said to have received a wider circulation here than at home. His use of words is careful and accurate. His analysis showed clearly that among duties technically so called were duties upon houses and windows, upon conveyances of land, and upon salaries. I can find no foundation for the contention, sustained in the prevailing opinion of 1895,8 that income taxes have been

1 I confess to some difficulty in understanding the majority theory in 1895 as to what indirect taxes were a century earlier supposed to be. Stress is laid upon Fisher Ames' remark that an indirect tax falls “not upon the possession but upon the use" (157 U. S. 569; 158 ibid. 624, 625), but that sustains the minority view (158 U. S. 665-9, 693, 702). Reference is also made to Adam Smith (157 U. S. 559; 158 U. S. 627), but he also applies the words “direct ” and “ indirect" rather to the method than the subject of taxation, considering that the same subject may be taxed either directly or indirectly (Wealth of Nations, Rogers' ed., ii., 453). Finally, it is said, what was decided in the Hylton case was, then, that a tax on carriages was an excise, and, there fore, an indirect tax” (158 U. S. 627), although it fell entirely on Hylton if the case stated in the pleadings was correct (p. 283, n. 1, supra). This is precisely the theory for which the government contended.

2 There was no capitation tax, which therefore had no place in the British classification. This may explain why the committees of detail and style in the convention of 1787 gave it a class by itself. 157

U.S., at 572.


always classed by the law of Great Britain as direct taxes, except the opinions, cited by the court, construing the British North America Act of 1867.1 These throw no light upon the intent of our statesmen of eighty years before. The earlier English taxes described by Blackstonewere succeeded by the general Act of 1689,3 which was apportioned in 1692 among the different counties, cities, and boroughs, and was continued as an apportioned tax by annual statutes until 1798, when Pitt made the tax perpetual.

There was at first some collection of this tax from personalty, but it speedily became a land tax and nothing else. The apportionment was very unfair from the start, and the disparity of course grew worse as time went on. It was collected by officials known as the “commissioners of the land tax." The title of the statute after 1703 remained in a substantially unvarying form as follows: “An Act granting an aid to Her Majesty by a land tax to be raised in the year [blank].” When made perpetual in 1798, it was still referred to as the “land tax.” Besides this apportioned tax there was another system of taxation, applicable to real as well as to personal property.

This was a system of uniformity, and the imposts were unvaryingly called duties. Thus we have in 1696 the “Act for granting to His Majesty several rates or duties upon houses for making good the deficiency of the clipped money."7 Pickering's Abstract of 1764 says of this: “Duties to be charged on inhabitants. Commissioners for the land tax 7 & 8 W. III, C. 5 to execute this for the first year.” We still have the same terminology in the statute of 1765, " for repealing the several duties upon houses, windows, and lights,” etc.; 8 a statute which established a uniform duty on dwelling-houses in England of three shillings, and in Scotland of one shilling, with a graduated scale of duties on windows or lights. In three statutes the house duties were classed with the “duties upon coal, culm, and cynders.”9 The famous Stamp Act of 1765 did not purport to lay a tax at all, but a “stamp duty."10 What has sometimes been called the first income tax law was the statute of the elder Pitt of 1758“ for grant



1 Bl. Com. 308–12. 1 158 U.S., at 631.

1 Wm. & M., C. 20. 4 1 Dowell, Hist. of Taxation in Eng., 51-3. 5 Ibid., 109.

6 38 Geo. III, c. 5. 77 & 8 W. III, c. 18. As to the phrase "rates or duties,” cf. an act of 1794, supra,

p. 282.

8 6 Geo. III, c. 38.

5 Geo. III, c. 12.

9 8 Anne, c. 4; 3 Geo. I, c. 8; 5 Geo. I, c. 19.


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