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not been sufficiently cleared up by the fourteenth amendment, nor are the rights of citizens protected by national legislation, except from the aggression of the States. Although the decisions of the Supreme Court in regard to the scope of the amendments have been a great disappointment to the framers of the reconstruction amendments, it is probably better that the States should be the repositories of these rights; at any rate, it is certain that the temper of the country is such, that at present, the States would not accept any further Constitutional amendment on this subject.

A great advance was made in the settlement of the question of personal rights by the thirteenth, fourteenth, and fifteenth amendments, and the subject is not likely to be reopened by amendment either for their extension or restriction.

137. FINANCIAL POWERS-EARLY OBJECTIONS.

No influence so strongly contributed to the establishment of the Constitution as the financial helplessness of the Confederation. In endowing the new Government with adequate powers of taxation, the new instrument excited the jealousy of the States and led to the suggestion of a large number of amendments in the State ratifying conventions.

(1) The first series of demands looked to the publication of an annual report of the national finances. The conventions of Virginia, North Carolina, and Rhode Island desired that an amendment should be added to the Constitution making more definite the clause in that instrument, requiring the accounts of the public money to be published from time to time, by providing that such accounts should be published at least once a year. The same proposition was advanced in the Senate during the first session of Congress, but that body failed to see that there was any more need of a constitutional provision in this case than there was in regard to the annual publication of the journals of Congress.2 The fact that such documents have been published throughout the one hundred years at regular intervals proves that they were right in both cases.

(2) The very word "excise" was disagreeable to our forefathers, bringing before them recollections of the most unpopular English tax; therefore it is not surprising to find that the New York convention included in its series of proposed amendments one declaring that Congress shall not impose any

App., Nos. 31, 83, 114.

2 App., No. 276. Ante, par. 18.

excise on any article the growth, production, or manufacture of the United States, ardent spirits excepted.' The early Congresses, so far from heeding the suggestion, under Hamilton's direction, laid an excise; in 1794 the tax brought about the well-known whisky insurrection.

(3) The New York and Rhode Island conventions desired the Constitution to be so amended that no money should be borrowed without the consent of two-thirds of the members present in each House of Congress." The restriction had nothing to recommend it, and the proposition does not again appear.

(4) The same conventions likewise proposed an amendment prohibiting Congress from ever laying a capitation or poll tax.3 No such tax has ever been laid and an amendment would therefore have been superfluous.

(5) The two States of North Carolina and Rhode Island, that delayed their ratification of the Constitution and entrance into the Union-conscious of their own sins in the emission of paper money-proposed through their respective conventions an amendment expressly stipulating "that Congress shall not, directly or indirectly, either by themselves or through the judiciary, interfere with any one of the States in the redemption of paper money already emitted and now in circulation, or in liquidating or discharging the public securities of any one of the States, but each State shall have the exclusive right of making such laws and regulations for the above purpose as they think proper." A short time after this, it will be remembered, the central Government assumed the States' debts in accordance with Hamilton's scheme. The general principle of this proposition has been approved as warranted by the Constitution in the decision of the Supreme Court in the Virginia coupon cases."

(6) Among the radical changes proposed by Mr. Tucker of South Carolina, in the First Congress, was one by which the States, instead of being prevented from laying duties on imports or exports, except where absolutely necessary for executing its

App., No. 47.

2 App., Nos. 53, 116.

3 App.. Nos. 60, 111.

4 See ante, p. 156, note 2. McMaster, I, pp. 285-286; 331-341.

5 App., Nos. 102, 106.

6 Virginia Coupon Cases, 114 U. S., 269.

H. Doc. 353, pt 2—16

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.

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. 1, sec. 10, cl. 2. 2App., No. 316. Cf. Constitution. Art. I, sec. 8, cl. 1.

3 Mason's Veto Powers, par. 95.

4Ante, par. 137.

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.

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.

4 Cooley, Const'al Law, p. 61 and notes; Foster, Com. on Const., 1, pp. 415–423. 5App., 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.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.5 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 mouth 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.

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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.

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