revenue of some kind, and must finally be paid by some species of taxation, except that small portion which may be provided for by the sale of public property. Congress expends vasts sums of money in the erection and adornment of a capitol, in furnishing a library, in the purchase of pictures, statues, and busts, in endowing a scientific institution; but it is not claimed that these disbursements are not made for the general welfare. A fort in New York is for the common, not local, defence. In short, the legislature is not trammelled by these provisions; it has ample scope and verge in which to indulge its proclivities to raise and expend money.

II. The various Kinds of Taxes.

§ 276. Congress may lay and collect "taxes, duties, imposts, and excises." Another clause speaks of capitation and other direct taxes. Let us inquire into the meaning of these various terms. The word "taxes" is generic, and includes all species; the words "duties," "imposts," "excises," " "capitation," "direct" and "indirect" taxes, are specific, instances and examples of the genus tax. It is plain that if the Constitution had said Congress may lay and collect taxes, and there had stopped, it would have conferred all the power which is now granted. The specifications were only added for greater caution. "Duties" and "imposts," as commonly used, are synonymous, although "imposts" is etymologically a word of broader meaning. They are especially applied to those sums of money demanded by the government for the privilege of importing or exporting merchandise; although "duties" also describes fixed sums paid on ships and other instruments of commerce, as tonnage duties and the like. "Excises" is a word of wide significance, and includes almost all forms of tax which are not direct, and which are not strictly "duties." The various payments required by the existing internal revenue laws are examples of excises. Payments of a percentage upon incomes, upon sales, upon the circulation of banks, upon the value of manufactured articles, upon the products of the soil; license fees for carrying on different

branches of trade and business; stamps upon written instruments, judicial proceedings, articles of manufacture, are all excises.

Capitation or poll taxes are fixed sums of money paid by or for each person without reference to his property or business. § 277. All taxes are separated into two classes, the direct and the indirect. Direct taxes include those assessed upon land, and those which pass under the denomination of capitation or poll, and probably include no others. Indirect taxes would then embrace all the remaining species, and would be co-extensive with duties, imposts, and excises. I say this division is probably correct, for the question has never yet been authoritatively decided by the Supreme Court of the United States; although in an early case, which will be referred to in the following subdivision, the judges expressed a very decided opinion that no other taxes were "direct," within the meaning of the Constitution, but such as were laid upon lands, and such as were strictly capitation.

III. The Means and Methods of enforcing the Taxing Power.

§ 278. The Constitution provides that no capitation or other direct tax shall be laid unless in proportion to the census; that direct taxes shall be apportioned among the several states according to their population; that duties, imposts, and excises shall be uniform throughout the United States; and, in immediate connection with the last provision, that no discrimination shall be made in regulations of the revenue in favor of any state. Finally, Congress is forbidden to lay duties on articles exported from any state. What is the meaning of these provisions? Two principles apply to the entire subject of taxation: Apportionment of direct, and uniformity of indirect, taxes. Direct taxes are to be laid and collected in one manner; all others in a different mode.

§ 279. Direct taxes must all be apportioned among the sev eral states according to their population. Thus, if Congress proposes to levy a direct tax, it must first fix the whole amount of money to be raised in this manner; and this amount it must

divide among all the states in sums proportioned to the number of inhabitants in each. That is to say, the same process must be gone through with which is adopted in ascertaining the number of representatives to which each state is entitled. It is evident, therefore, that the raising of direct taxes involves a large amount of labor, calculation, and adjustment. But the Constitution is peremptory, and a statute purporting to lay and collect a tax of this kind in any other manner, would be a mere nullity.

§ 280. Imposts, duties, and excises, whether laid upon imported goods, upon the instruments of foreign commerce, or upon internal articles, productions, and labor, are only required to be uniform throughout the United States; that is, the rate fixed for any article or subject must be the same in all parts of the country. It is not necessary that all articles should be subjected to the burden, or that all upon which a tax is laid should bear the same rate. But when a rate has been determined for any one subject, that must be retained for the same species in all the states. Neither is it necessary to ascertain at the outset the total amount to be raised, or to divide it among the states. In laying and collecting indirect taxes, the government touches the individual apart from any of his relations to the state of which he is an inhabitant. It requires no argument to show that this description of tax is by far the most convenient, the easiest to lay and collect; and for this reason it has been resorted to at all times by the general gov

ernment.

§ 281. It becomes necessary, therefore, to inquire a little more particularly, what are direct, and what indirect, taxes? Few cases on the general question of taxation have arisen and been decided by the Supreme Court, for the simple reason that, until the past few years, the United States has generally been able to obtain all needful revenue from the single source of duties upon imports. There can be no doubt, however, that all the taxes provided for in the internal revenue acts now in operation are indirect.

This subject came before the Supreme Court of the United States in a very early case, Hylton v. The United States.1

13 Dallas' R. 171.

In the year 1794 Congress laid a tax of ten dollars on all carriages, and the rate was thus made uniform. The validity of the statute was disputed; it was claimed that the tax was direct, and should have been apportioned among the states. The court decided that this tax was not direct, and the reasons given for the decision are unanswerable, and would seem to cover all the provisions of the present internal revenue laws.

§ 282. While thus determining that imposts of this nature are not direct, the court was not called upon to decide authoritatively as to the character of all direct taxes; but the several judges, in delivering their opinions, could not avoid discussing the general question. Mr. Justice Chase said: "I am inclined to think that the direct taxes contemplated by the Constitution were only two, namely, a capitation, or poll, tax, simply, without regard to property, profession, or other circumstance, and a tax on land. I doubt whether a tax by a general assessment of personal property within the United States is included within the term direct tax." Mr. Justice Patterson said: "It is not necessary to determine whether a tax on the produce of land be a direct or an indirect tax. Perhaps the immediate product of land in its original and crude state, ought to be considered as a part of the land itself. When the produce is converted into a manufacture, it assumes a new shape. Whether direct taxes, in the sense of the Constitution, comprehend any other than a capitation tax, and a tax upon land, is a questionable point. I never entertained a doubt that the principal - I will not say the only — objects which the framers of the Constitution contemplated as falling within the rule of apportionment, were a capitation tax and a tax on land." Mr. Justice Iredell said: "Perhaps a direct tax, in the sense of the Constitution, can mean nothing but a tax on something inseparably connected with the soil, — something capable of apportionment under all circumstances. A land and a poll tax may be considered of this description."

1 י

1 Mr. George T. Curtis, in an article contributed to Harper's Monthly Magazine for August, 1866, criticizes the language of the judges in this case. I cannot, however, adopt his speculations; they are opposed to the uniform practice of the government, as well as to judicial dicta.

$283. The clause which declares that "no tax or duty shall be laid on articles exported from any state," has always been considered as expressly prohibiting all duties and imposts on exports as such. Still, in order to fall within this restriction, the tax must be laid upon the article as a condition of its being exported, while it is, so to speak, in the act of transit out of the country. An export duty must be the counterpart of an import duty. It cannot for a moment be admitted that an impost upon internal articles of growth and manufacture, while they are internal, is forbidden, even though the principal, nay, even sole, use to which these articles are put in the trade of the country is to export them. Were such a position to be assumed, the power of the government to raise a revenue would be materially curtailed; the necessary result would be that the fact of subsequent exportation would be the test of the prior liability to be taxed, — an absurdity too great to have been contemplated by the framers of the Constitution. But the language of that instrument does not admit of such a construction. It is not said that no tax shall be laid upon articles which may possibly, or probably, or even certainly, be exported from a state, but upon "articles exported" from any

state.

§ 284. The power to lay and collect taxes includes the power to adopt all measures which may tend to carry out the object of the general provision. Thus, the collection of duties on imports requires the appointment of the retinue of officers necessary for the purpose, and the establishment of all the means and checks requisite to secure and guard the public funds. The same is true of the internal revenue law. The laying and collection of excises includes all measures conducive to the effective working of the system measures of discovery, penalties for frauds, punishments for criminal acts. The imposition of stamps requires that all instruments on which the stamp is made necessary, should be declared void if the parties interested have neglected to obey the law. To sum up: the general grant of power to lay and collect taxes involves the particular power to appoint large numbers of officers, to provide for their compensation, and to make rules for their guid