large number of proposed amendments on the apportionment Representatives, but a comparatively small number applied to

taxes.

Eighteen amendments have been introduced touching this provision. The first was presented in 1804 by Senator Pickering of Massachusetts, and provided that Representatives and direct taxes should be apportioned among the several States according to the number of their free inhabitants. Similar amendments were proposed by the Hartford convention and presented to Congress in 1815 by members from Connecticut and Massachusetts upon the instruction of their legislatures.2 The only other propositions to amend this clause previous to 1860 came from the legislature of Massachusetts, in 1843-1844, and were presented by John Quincy Adams. They called forth a prolonged and heated discussion over their acceptance. In 1865 Mr. Sloan introduced a resolution to amend the Constitution so that direct taxes should be apportioned among the several States according to the appraised value of taxable property therein. A similar proposition was offered by Senators Doolittle, Stewart and Mr. Lawrence to supply the deficiency in the resolution passed by the House on the apportionment of Representatives. The same change was proposed by Senator Lane about a month later. Within a few months Senators Sherman and Doolittle tried without avail to incorporate into the resolution destined to become the fourteenth amendment a similar provision, but it was silent in regard to the apportionment of direct taxes. The proposition of the Hartford convention was substantially revived in the amend ments suggested by Messrs. Broomall, Blaine, Fessenden, and others in the winter of 1865-66. These provided that direct taxes should be apportioned according to the number of the inhabitants of each State.10 Mr. Conkling proposed that the 'App., No. 364. Ante, pp. 45, 46.

6

App., Nos. 425, 433, 441. See ante, p. 46. Direct taxes had been levied during the war of 1812. Stat. at Large III, 22, 164.

10 App., Nos. 1053, 1069, 1077, 1087. Mr. Blaine's proposition being in connection with the apportionment of Representatives, provided that those whose political rights were denied or abridged should not be enumerated. Messrs. Fessenden's and Eliot's propositions' would exclude Indians not taxed.

apportionment should be according to their respective number of citizens of the United States.' But none of the propositions were favorably considered.

In recent years, a few further resolutions to alter the Constitution on this subject have been presented. Between 1876 and 1883 Mr. Reagan of Texas has six times introduced an amendment renewing the proposal that direct taxes shall be apportioned between the several States and Territories and the District of Columbia in proportion to the value of the property in each. It further provided that each State, Territory, and the District of Columbia should have the right to collect its portion of the same, if it elect to do so, by its own officers, and from subjects of taxation provided by its own laws; upon neglect to do so the taxes should be collected as might be provided by the laws of the United States. This amendment is substantially a return to the system proposed at the time of the ratification of the Constitution.

In the early seventies two other resolutions proposing to prohibit or greatly restrict the powers of Congress to impose duties on imports and excises, provided that the necessary revenue should be raised by a direct tax, apportioned among the several States and Territories in proportion to the value of the property in each.3

The whole question has become entirely academic since the General Government appears to have abandoned direct taxes. The last tax laid in this manner has been refunded to the States which paid it.*

141. TAXATION OF CORPORATIONS BY STATES.

3

When, in the Yazoo cases and the Dartmouth College case of 1819, the Supreme Court held that a charter granted by a State was a contract, no one expected the great growth of the wealth and power of corporations. In 1884, 1886, and 1888 Mr. McComas of Maryland and one of his colleagues introduced an amendment to the Constitution enabling the State to tax corporations, although exempted from taxation by their charters; App., No. 1073.

2 App., Nos. 1407, 1442, 1486, 1533, 1601, 1661. Mr. Landers of Indiana introduced an amendment making "wealth" the basis of apportionment. App., No. 1419.

3 App., Nos. 1338, 1363. No. 1338 proposed to exempt from taxation the property of agricultural societies, school, religious, cemetery, and charitable purposes, as well as property of the United States, State and municipal corporations. See post, pars. 145, 148.

4 By act of the Fifty-first Congress. Congress has imposed direct taxes five times. 1798, 1813, 1815, 1816, 1861. See Foster, Com. on Const., I, sec. 69, pp. 413-423.

56 Cranch, 87; 4 Wheaton, 518.

and at the same time that clause of the Constitution which prohibits a State from passing any law impairing the obligation of contracts was to be declared inoperative in the cases under this new amendment. No action was taken; the amendments are an indication of the dissatisfaction with the doctrines laid down in the cases of Fletcher . Peck and Dartmouth College v. Woodward. The decisions of the Supreme Court in recent years indicate a similar tendency.

142. EXPORT DUTIES.

Only one other provision as to taxation has been the object of amendment. The prohibition on export duty was undoubtedly intended to prevent undue taxation and the burdening of the agricultural States. At two different periods amendmentsnine in all-have been offered to this clause so as to permit Congress to lay taxes on exports.

The first group were submitted during the war of 1812. Mr. Mitchell of New York presented the first amendments proposing this change in March, 1812.3 In each of the three sessions of the Thirteenth Congress (1813-14) Mr. Jackson of Virginia introduced a similar proposition. In January, 1814, the Committee of the Whole reported to the House their agreement to the second of these resolutions, but the resolution itself failed to come to a vote. The return of peace brought to an end the movement in favor of this change.

Not until the fourth year of the civil war was this amendment again suggested. In March, 1864, a motion was made by Mr. Blaine directing the Committee on the Judiciary to inquire into the expediency of proposing such an amendment. Within the next two years a similar amendment was proposed at four different times by as many authors. Mr. Stevens of Pennsylvania had been one of those who in 1865 had advocated as an amendment a tax on exports; in the following year he introduced in the House a resolution to so amend the Constitution

App., Nos. 1622, 1623, 1649, 1701.

The preamble of these resolutions recited the fact that under "the principle of the construction approved by the Supreme Court no hindrance can be seen to rich corporations making contracts with legislatures as they best may for perpetual exemption from all the burdens of supporting the Government.'

App., No. 404.

4 App., Nos. 410, 415, 420. This was proposed to enable us to raise money on foreign consumption and to place us in a position where we could retaliate upon the powers of western Europe for the restrictions placed upon our commerce. Niles' Register, 11, p. 42.

App., No. 1033.

G App., Nos. 1037, 1043, 1051, 1054.

as to permit Congress to lay an export duty on cotton.' This proposition was brought to a vote and rejected, 59 voting in favor to 61 against. A similar resolution was proposed in 1884.3 Both groups of amendments had a temporary cause and were dropped when the cause had passed away. The Government in both cases was engaged in war and embarrassed in its finances. The prohibition is so plainly advantageous to a large number of the States that a three-fourths vote to take it away can not be expected.

143. PAYMENT OF THE CONFEDERATE DEBT.

It was hardly to be supposed that any part of the debt incurred in carrying on the war against the United States would ever be assumed by the General Government. There was, however, some danger that the Southern States might assume it. In order to prevent any doubt on the subject, sixteen amendments were proposed. The first were offered by Messrs. Stevens, Bingham, and Farnsworth, December 5 and 6, 1865, in the House. The latter was reported favorably by the Committee on the Judiciary, and on December 19 passed the House by the pronounced vote of 150 yeas to 11 nays. In the Senate four amendments on this subject were introduced previous to the presentation of the resolution which became the fourteenth amendment. Two of these were advocated by Charles Sumner and Henry Wilson. When the Farnsworth amendment was received from the House it was referred to a committee, but meanwhile the fourteenth amendment having been passed by that body," the consideration of this measure on the debt was indefinitely postponed.

When the fourteenth amendment as passed by the House came before the Senate, it was found to contain a stipulation that neither the United States nor any State should assume or pay any debt already incurred or which may hereafter be incurred in aid of insurrection or of war against the United States. Six amendments to this clause were proposed in the Senate, but that presented by Senator Clark of New Hamp

1 App., No. 1189.

2 App., No. 1191.

3 App., No. 1620.

Mr. Robinson of New York, for the encouragement of the home manufacture of our domestic products.

4App., Nos. 1052, 1055, 1057.

App., Nos. 1066, 1105, 1121, 1130.

App., No. 1139.

App., Nos. 1145, 1150, 1162, 1175c, 1181, 1186.

shire was adopted and incorporated as section 4 of the amendment. Mr. Davis of Kentucky moved to add the following clause to the fourth section: "But the obligation of the United States to pay for private property taken for public use in all cases shall remain inviolate." 2 In 1867, before the success of the fourteenth amendment was assured, Senator Dixon of Connecticut and Congressman Ashley of Ohio alike introduced an amendment on this subject in connection with the series of propositions offered by them.3

The provisions on this subject, as well as those on the pay ment of the national debt, were suggested by the apprehension of some that should the South, by some political overturn, again obtain control of the National Government, it might either impair the credit of the Government by refusing to pay its debts and pensions, or even cripple its finances by assum ing the Confederate debt.

144. CLAIMS FOR DAMAGES ARISING OUT OF THE CIVIL WAR.

Although any attempt to make up the public losses occasioned by participation in the Confederacy was thus precluded, there was serious danger that the Government might be called upon to pay for private property destroyed or taken during military operations. The special machinery provided by the acts of 1855, 1863, and 1872 for the establishment of a court of claims seemed inadequate. Hence the introduction, between the years 1876-1881, of sixteen amendments relative to the payment of claims. The first of these presented by Mr. Baker of Indiana, December 8, 1876, may be taken as typical. It prohibited the payment of any claims for loss or damage growing out of the taking, use, or destruction of property during the late war if the owner ever gave any aid, countenance, or encouragement to the rebellion.5 Some were very comprehensive and forbade the payment of all claims for property taken, used, injured, or destroyed by the United States during the rebellion." Another, submitted by Mr. Keifer of Ohio, made provision for the establishment of a court of claims with competent jurisdiction to render judgment on cases

App., No. 1181.

2 App., No. 1186.

3 App., Nos. 1201, 1213e, 1221.

4 App.,

1525.

Nos. 1432, 1435, 1452, 1455, 1468, 1469, 1471, 1477, 1477a, 1481, 1484, 1485, 1487, 1491,

App., No. 1432.

App., Nos. 1477a, 1525.