inspection laws, should be allowed to lay such duties on imports and exports, or any duty of tonnage as should be uniform in their operation on the citizens of all the several States in the Union. The members of the House, mindful of the defects of the Articles of the Confederation, were in no mood to consider such a proposition. The only later attempt to assert it was in the nullification movement of South Carolina, in 1833.

(7) It is interesting to note, in view of the subsequent discussion over "the general welfare clause" of the Constitution, that an attempt was made, March 2, 1793, to amend this clause. so that the entire provision would read: "That Congress shall have power to lay and collect taxes, duties, imports, and excises, to pay their debts and provide for the common defense and general welfare of the United States in the cases hereinafter particularly enumerated." If this change had been made it would have prevented the champions of broad construction from appealing to the general welfare clause to justify the constitutionality of their proposed action.3

138. TAXATION-REQUISITIONS.

4

Except in the group of amendments just discussed, and an indefinite proposition in 1871,5 the question of taxation has given rise to few amendments. One clause, however, was so connected with sectional interests that it has several times been discussed. It is the provision that no capitation or other direct tax shall be laid unless in proportion to the census. The feeling was general throughout the States that the Federal Government should not lay direct taxes if it could be avoided. The prejudice is seen in the fact that all seven of the State conventions, that proposed any amendments to the Constitution, included in their series a proposition on this subject. The convention of five States' proposed almost identically the same amendment, providing that when the income arising from the impost and excise are insufficient, the Congress instead of laying direct taxes shall first make requisitions upon the States to pay their proportion as determined by the census, which

App., No. 204. Cf. Constitution. Art. I, sec. 10, cl. 2.
App., No. 316. Cf. Constitution.

3 Mason's Veto Powers, par. 95.

4Ante, par. 137.

Art. 1, sec. 8, cl. 1.

Introduced by Mr. McNeely of Illinois, in the House, December 11, 1871. App. No.

1338.

6 Constitution, Art. I, sec. 9, cl. 4.

? Massachusetts, New Hampshire, South Carolina, New York, and Rhode Island. App., Nos. 4, 12, 17, 48, 111.

shall assess and collect the same as the legislature shall direct. In case the State neglect and refuse to pay its proportion, Congress may then lay such State's proportion together with interest. Similar propositions were introduced in both the House and Senate during the first session of Congress, but were rejected by emphatic votes. This failure to receive the recommendation of Congress is somewhat remarkable in view of the unanimity of the State conventions in proposing it.

2

The Virginia and North Carolina conventions proposed an amendment which would have had the same effect as that proposed by the other conventions. By the terms of this amendment it was provided that when Congress should lay a direct tax or excise they should inform the executive of each State of the quota of such State, and if the State should raise its quota at the required time the tax or excise laid by Congress should not be collected in such State. It is evident that all these proposals were designed to preserve the dignity of the State, and to restrict as far as possible the entrance of Federal officers and machinery within the jurisdiction of the State.

Another form of restriction was proposed by the Rhode Island convention amendment. Congress was not to lay a direct tax without the consent of the legislatures of threefourths of the States.3

4

139. DIRECT TAXES.

Although some question has been raised as to the nature of direct taxes, and the Supreme Court has been called upon to define them, the only amendment on this point was introduced in 1793. It provided that every tax should be deemed direct, other than taxes on imports, excises, transfers of property, and law proceedings. This appears to have been an attempt to secure a clear definition of the direct tax.

140. APPORTIONMENT OF DIRECT TAXES.

The question of the manner of apportioning direct taxes has been important chiefly because of its connection with the apportionment of Representatives. Nevertheless, out of the

'App., Nos. 200, 236, 259.

2App., Nos. 28, 80.

3App., No. 112.

4Cooley, Const'al Law, p. 61 and notes; Foster, Com. on Const., 1, pp. 415-423. "App., No. 316. This may have been presented in anticipation of the act of Congress of 1794 levying a tax upon carriages, which was held by the Supreme Court not to be a direct tax within the meaning of the Constitution. Hylton v. U. S., 3 Dallas, 171. Foster, pp. 418, 419.

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.' 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 amendments 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

2App., Nos. 425, 433, 441. See ante, p. 46. Direct taxes had been levied during the war of 1812. Stat. at Large III, 22, 164.

3App., No. 734.

4 See ante, pp. 46-49.

App., No. 1041.

"App., Nos. 1082b, 1092, 1100.

H. R. No. 51. See ante, par. 22.

"App., No. 1119.

"App., Nos. 1157, 1174, 1176.

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.

5

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 amend ments are an indication of the dissatisfaction with the doctrines laid down in the cases of Fletcher v. 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 amendments— nine 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.

2 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.

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