ance; the power to forfeit vessels, cargoes, and other property of persons who violate the laws; the power to punish by fines and imprisonment; the power to investigate the private circumstances of citizens; the power to interfere with private contracts between individuals, and to declare them void in case of failure to comply with the statute; and perhaps the power to interfere in like manner with judicial proceedings in the

state courts.

IV. The Extent of the Taxing Power.

§ 285. The attribute of laying and collecting taxes belongs to the government from the very necessities of the case. To carry on the public affairs, to provide for the common defence, and to promote the general welfare, demand a revenue commensurate with the exigencies of the nation. This revenue must finally be supplied by some species of taxation. A resort to loans is always intended as temporary, for debts thus contracted must some time be paid off. The government, therefore, must be able to call upon the property of individuals, and there can be no limit to the extent of that call, within the legitimate purposes for which a revenue may be raised. In regard to the extent of the power to tax, C. J. Marshall said in Providence Bank v. Billings: 1 "The power of legislation, and consequently of taxation, operates on all the 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 a part of itself, and need not be reserved where property of any description, or the right to use it in any measure, is granted to individuals or corporate bodies. However absolute the right of an individual may be, it is still 'n the nature of that right that it must bear a portion of the public burdens, and that portion must be determined by the legislature." The same eminent judge remarked in McCulloch v. The State of Maryland: 2 "It is admitted that the power of taxing the people and their property is essential to the very existence of government, and may be legitimately 2 4 Wheaton's R. 316, 428.

1 4 Peters' R. 514, 561, 563.

exercised on the objects to which it is applicable, to the ut most 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, therefore, give to their government a right of taxing themselves and their property; 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."

§ 286. These views have never been questioned; all accede to their correctness. Whenever, then, the United States may lawfully call for any revenue at all, there is no limit to the amount they may demand and collect. When they may tax at all, they may lay heavy or light burdens according to their own discretion. Judges and courts cannot interfere and control this discretion by deciding that any particular imposition is too much and shall not be collected. The amount of a tax is not a question of power, but of policy; not of constitutional law, but of political economy. If the people are weighed down by greater loads than they are willing to bear, they have the sure and speedy remedy in their own hands. The biennial election of Representatives in Congress gives frequent opportunity to change these public servants by removing those who voted for the tax, and filling their places with others who will repeal or modify the obnoxious law. Such an expression of public opinion would inevitably produce its effect upon the legislature. The people have constituted themselves the sole judges of this matter; they have not parted with any portion of this attribute to the courts, national

or state.

§ 287. When Congress sees fit to lay and collect duties upon imported goods, they may demand any amount which is leemed proper in their own discretion. The only limit upon their power is that they must fix the same rate for the same article in all parts of the country. Uniformity is the constitutional rule.

When Congress sees fit to lay and collect a tax on land, they may demand any percentage of the land's worth; subject only to the restriction that the whole amount thus to be raised must be apportioned among the several states according to their respective populations.

When Congress resorts to the system of excises, they may demand any percentage of incomes, any sums as license fees for carrying on particular businesses, 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, 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 fixed 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 13 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 the 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 the course of the proceeding. This law was made applicable to controversies and other matters in state courts.1 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 courts and judges 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 axes. What kind of taxes is not designated; all kinds are mcluded.

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. It does not

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

2 22 Indiana R. 276.

change their character as excises; it is only a strong 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 ases. Congress does not impose taxes upon the acts, as such, of public functionaries, whether they are legislators, judges, or