fully avoid any compulsion which infringes on the religious scruples of any, however little reason may seem to other persons to underlie them. Even in the important matter of bearing arms. for the public defence, those who cannot in conscience do so are excused, and their proportion of this great and sometimes necessary burden is borne by the rest of the community.1

Some of the State constitutions have also done away with the distinction which the common law had established in the credibility of witnessess. All religions were recognized by the law to the extent of allowing all persons to be sworn and to give their evidence, who believed in a supreme superintending Providence who rewards and punishes, and that an oath was binding upon their conscience.2 But the want of such belief rendered the person incompetent. Wherever the common law remains unchanged, it must be held no violation of religious liberty to recognize and enforce its distinctions; but the tendency is to do away with them entirely, or to allow one's unbelief to go to his credibility only, if taken into account at all.3

1 There are constitutional provisions to this effect in New Hampshire, Alabama, Texas, Illinois, Indiana, Vermont, Tennessee.

1 See upon this point the leading case of Ormichund v. Barker, Willes, 538, and 1 Smith's Leading Cases, 535, where will be found a full discussion of this subject. Some of the earlier American cases required of a witness that he should believe in the existence of God, and of a state of rewards and punishments after the present life. See especially Atwood v. Welton, 7 Conn. 66. But this rule did not generally obtain ; belief in a Supreme Being who would punish false swearing, whether in this world or the world to come, being regarded sufficient. Cubbison v. McCreary, 7 W. & S. 262; Blocker v. Burness, 2 Ala. 354; Jones v. Harris, 1 Strob. 160; Shaw v. Moore, 4 Jones, 25; Hunscom v. Hunscom, 15 Mass. 184; Brock v. Milligan, 10 Ohio, 121; Bennett v. State, 1 Swan, 411; Central R. R. Co. v. Rockafellow, 17 Ill. 541; Arnold v. Arnold, 13 Vt. 362. But one who lacked this belief was not sworn, because there was no mode known to the law by which it was supposed an oath could be made binding upon his conscience. Arnold v. Arnold, 13 Vt. 362.

The States of Iowa, Minnesota, Michigan, Oregon, Wisconsin, and New York have constitutional provisions expressly doing away with incompetency from want of religious belief. Perhaps the general provisions in some of the other constitutions declaring complete equality of civil rights, privileges, and capacities are sufficiently broad to accomplish the same purpose. Perry's case, 3 Grat. 632. In Michigan, a witness is not to be questioned concerning his religious belief. People v. Jenness, 5 Mich. 305.

CHAPTER XIV.

THE POWER OF TAXATION.

THE power to impose taxes is one so unlimited in force and so searching in extent, that the courts scarcely venture to declare that it is subject to any restrictions whatever, except such as rest in the discretion of the authority which exercises it. It reaches to every trade or occupation; to every object of industry, use, or enjoyment; to every species of possession; and it imposes a burden which, in case of failure to discharge it, may be followed by seizure and sale or confiscation of property. No attribute of sovereignty is more pervading, and at no point does the power of the government affect more constantly and intimately all the relations of life than through this power.

Taxes are defined to be burdens or charges imposed by the legislative power upon persons or property, to raise money for public purposes.1 The power to tax rests upon necessity, and is inherent in every sovereignty. The legislature of every free State will possess it under the general grant of legislative power, whether particularly specified in the constitution among the powers to be exercised by it or not. No constitutional government can exist without it, and no arbitrary government without regular and steady taxation could be anything but an oppressive and vexatious despotism, since the only alternative to taxation would be a forced extortion for the needs of government from such persons or objects as the men in power might select as victims. In the language of Chief Justice Marshall: "The power of taxing the people and their property is essential to the very existence of government, and may be legitimately exercised on the objects to which it is applicable to the utmost 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

1 Blackwell on Tax Titles, 1. A tax is a contribution imposed by government on individuals for the service of the State. It is distinguished from a subsidy as being certain and orderly, which is shown in its derivation from Greek, ráĝis, ordo, order or arrangement. Jacob, Law Dic.; Bouvier, Law Dic.

tax, the legislature acts upon its constituents. This is, in general, a sufficient security against erroneous and oppressive taxation. The people of a State, 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." 1

And the same high authority has said in another case: "The power of legislation, and consequently of taxation, operates on all 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 part of itself, and need not be reserved where property of any description, or the right to use it in any manner, is granted to individuals or corporate bodies. However absolute the right of any individual may be, it is still in the nature of that right that it must bear a portion of the public burdens, and that portion must be determined by the legislature. This vital power may be abused; but the interest, wisdom, and justice of the representative body, and its relations with its constituents, furnish the only security against unjust and excessive taxation, as well as against unwise taxation." 2 And again, the same judge says it is "unfit for the judicial department to inquire what degree of taxation is the legitimate use, and what degree may amount to the abuse, of the power." 3 And the same general views have been frequently expressed in other cases.4

And it is upon the ground that the power of taxation is so unlimited, so far as those objects are concerned which are subjected to it, that the national courts have held that all the agencies of the general government were, by necessary implication, excepted from the taxing power of the States. Otherwise the States might impose taxation to an extent that might cripple, if not wholly defeat, 1 McCulloch v. Maryland, 4 Wheat. 428. 2 Providence Bank v. Billings, 4 Pet. 561.

McCulloch v. Maryland, 4 Wheat. 430.

Kirby v. Shaw, 19 Penn. St. 260; Sharpless v. Mayor, &c. 21 Penn. St. 168; Weister v. Hade, 52 Penn. St. 478; Wingate v. Sluder, 6 Jones, Law, 552; Herrick v. Randolph, 13 Vt. 529; Armington v. Barnet, 15 Vt. 745; Thomas v. Leland, 24 Wend. 65; People v. Mayor, &c. of Brooklyn, 4 N. Y. 425; Portland Bank v. Apthorp, 12 Mass. 252.

the operations of the national authorities within their proper sphere of action. "That the power to tax," says Chief Justice Marshall," involves the power to destroy; that the power to destroy may defeat and render useless the power to create; that there is a plain repugnance in conferring on one government a power to control the constitutional measures of another, which other, with respect to those very measures, is declared to be supreme over that which exerts the control, -are propositions not to be denied." And referring to the argument that confidence in the good faith of the State governments must forbid our indulging the anticipation of such consequences, he adds: "But all inconsistences are to be reconciled by the magic word,-confidence. Taxation, it is said, does not necessarily and unavoidably destroy. To carry it to the excess of destruction would be an abuse, to presume which would banish that confidence which is essential to all government. But is this a case of confidence? Would the people of any one State trust those of another with a power to control the most insignificant operations of their State government? We know they would not. Why then should we suppose that the people of any one State would be willing to trust those of another with a power to control the operations of a government to which they have confided their most important and most valuable interests? In the legislature of the Union alone are all represented. The legislature of the Union alone, therefore, can be trusted by the people with the power of controlling measures which concern all, in the confidence that it will not be abused. This, then, is not a case of confidence.” 1

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1 McCulloch v. Maryland, 4 Wheat. 431. The case involved the right of the State of Maryland to impose taxes upon the operations, within its limits, of the Bank of the United States, created by authority of Congress. 'If," continues the Chief Justice, "we apply the principle for which the State of Maryland contends to the Constitution generally, we shall find it capable of changing totally the character of that instrument. We shall find it capable of arresting all the measures of the government, and of prostrating it at the foot of the States. The American people have declared their Constitution, and the laws made in pursuance thereof, to be supreme; but this principle would transfer the supremacy in fact to the States. If the States may tax one instrument employed by the government in the execution of its powers, they may tax any and every other instrument. They may tax the mail; they may tax the mint; they may tax patent rights; they may tax the papers of the custom-house; they may tax judicial process; they may tax all the means employed by the government to an excess which would defeat all the ends of government. This was not intended by the

If, therefore, the Congress of the Union may constitutionally create a Bank of the United States, and such bank is to be considered an agency of the national government in the accomplishment of its constitutional purposes, the power of the States to tax such bank, or its property, or the means of performing its functions, is prohibited by necessary implication. In like manner a State is prohibited from taxing an officer of the general government for his office or its emoluments, since such a tax, having the effect to reduce the compensation for the services provided by the act of Congress, would to that extent conflict with such act, and tend to neutralize its purpose.2 So the States may not impose taxes upon the obligations or evidences of debt issued by the general government upon the loans made to it, unless such taxation is permitted by law of Congress, and then only in the manner such law shall prescribe, any such tax being an impediment to the operations of the government in negotiating loans, and in greater or less degree, in proportion to its magnitude, tending to cripple and embarrass the national power. The tax upon the national securities is a tax upon the exercise of the power of Congress "to borrow money on the credit of the United States." The exercise of this power is interfered with to the extent of the tax imposed under State authority, and the liability of the certificates of stock or other securities to taxation by a State, in the hands of individuals, would necessarily affect their value in market, and therefore affect the free and unrestrained exercise of the power. "If the right to impose a tax exists, it is a right which, in its nature, acknowledges no limits. It may be carried to any extent within the jurisdiction of the State or corporation which imposes it, which the will of such State or corporation may prescribe." 4

3

American people. They did not design to make their government dependent on the States."

1 McCulloch v. Maryland, 4 Wheat. 316; Osborn v. United States Bank, 9 Wheat. 738; Dobbins v. Commissioners of Erie Co., 16 Pet. 435.

2 Dobbins v. Commissioners of Erie Co., 16 Pet. 435.

3 Weston v. Charleston, 2 Pet. 449; Bank of Commerce v. New York City, 2 Black, 620; Bank Tax Case, 2 Wal. 200; Van Allen v. Assessors, 3 Wal. 573; People v. Commissioners, 4 Wal. 244; Bradley v. People, Ibid. 459.

* Weston v. Charleston, 4 Pet. 449; Bank of Commerce v. New York City, 2 Black, 631. This principle is unquestionably sound, but a great deal of difficulty has been experienced in consequence of it, under the law of Congress establishing the National Banking System, which undertakes to subject the National Banks