# The Substance of an Argument in the Case of the Carriage Duties

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Richmond, Virginia. Printed by Augustine Davis.
| United States, vs. Hylton. | $\scriptstyle {\left.{\begin{matrix}\ \\\\\ \ \end{matrix}}\right\}\,$ | Note of Argument for Plaintiffs. |
THIS action is brought in behalf of the United States, for a penalty which it is alledged the defendant has incurred by not paying a duty imposed on his carriage by an act of Congress, intituled, "An act laying duties, on carriages, for the conveyance of persons."
On the part of the defendant the fact is admitted, he also admits, that if the act of Congress has the force of a law he has subjected himself to the penalty it imposes. But it is contended that this act is contrary to the Constitution of the United States, and that if this point be in favor of the Defendant, the act is merely void, and of course no penalty which it inflicts is recoverable.
It has been the endeavour of both parties to bring this question, and this question alone, before the court. According to the accustomed order of argument it would have fallen to my lot as counsel for the United States to open the cause; but it being the wish of the defendant's counsel first to state his objections to the law, and his reasons in support of them, and it appearing to me that this mode of duscussion would bring the point in controversy more immediately before the court, it was agreed that he should first be heard.
In replying to his argument, I fear it will not be in my power to give the court that information they have a right to require. Since being engaged in this cause, I have had but little leisure for the investigation of a subject so remote from the usual topics of legal controversy, and involving in it questions of so much magnitude, as the authority of this court, the power of the fœderal legislature, and the construction of a most important part of the Constitution of the United States.
It would add to my embarrassment, if I thought it necessary to range in the wide field of argument which the counsel for the defendant has opened, and to defend the law on the principles of its conformity to policy and justice, as well as to the Constitution. but notwithstanding my respect for his opinions, I do not deem it necessary or proper that I should follow him in this enquiry.
The Constitution of the United States by investing Congress with the right of legislation has necessarily put it in their power to exercise their discretion on the subject, and in the exercise of that discretion they may be surprized into the making of laws that are neither politic nor just. Yet if these laws are within the limits of their authority, it belongs not to a co-ordinate branch of the government to say they shall not be carried into effect. On the other hand, they may make laws that in themselves are consistent with the soundest rules of right as well as expediency, yet on the ground which the counsel for the defendant himself has taken, if these laws are contrary to the Constitution, their justice or policy will not render them less void.
Leaving then these arguments which whether proper or not when addressed to another tribunal, (the tribunal of the people, which may decide on them when met for the election of members for the next Congress) certainly ought not, and I trust will not, have any influence upon the decision of the cause now before the court, I will proceed to examine the question, whether the act of Congress which give this penalty to the United States is conformable to the Constitution, or not.
By a clause in the eighth section of the first article of the Constitution, Congress have a general power to lay, taxes, duties, imposts, and excises. Every species of property is thereby liable to taxation by that body.
In the same clause there is a provision, that duties imposts and excises shall be uniform throughout the United States. The tax in question is laid uniformly, and if it belongs to either of the descriptors there is an end to the enquiry, and the tax is laid conformably to the Constitution; to have laid it in any other manner would have been unconstitutional.
By another clause in the ninth section of the same article of the Constitution it is provided that no capitation or other direct tax shall be laid unless in proportion to the census which is directed to be taken by the second section. If then this is a direct tax, the law violates the Constitution. I do not think it requisite to take up the time of the court in verbal criticism upon the meaning of the words, tax, duty, impost, or excise; and if the counsel for the defendant be consistent with himself when in one part of his argument he asserts that they are all convertible terms and nearly synonimous, and in another he insists that the word tax is the generic term and includes all the others, the view I have taken of the question does not seem to require that I should undertake to prove his definitions incorrect.
It appears to me equally unimportant now to examine, whether as on the one hand Congress are directed to lay duties, imposts, and excises, in an uniform manner, and on the other hand to lay direct taxes according to the census, there may not be a third class of indirect taxes, which are neither duties, imposts, nor excises, and which Congress may lay either uniformly, or in proportion to the census; and whether the present case does not fall within that class of taxes. The question is not whether this tax ought to have been laid uniformly as has been done, or whether it might not have been laid in proportion to the census if Congress had thought it expedient that it should be so laid. The single question upon this point is this—Is the tax a direct one or not?
The counsel for the defendant supposes an indirect tax to be a tax on alienation—In other words a tax, the burden of which the taxpayer may shift off from his own shoulders and compel the purchasers of the commodity on which it is laid to reimburse, so that the one on whom it ultimately falls pays it indirectly through the medium of a third person—The substance of his definition of a direct tax is this, that it is a tax paid by the person on whom it ultimately falls directly and without intervention of a third person—on the truth of these positions the cause turns.
Before I state my own ideas upon the distinction between a direct and an indirect tax, let us enquire whether, if those of the counsel for the defendant be true, the Constitution is not contradictory and inconsistent with itself.
He has endeavoured to prove that excises, which he says are a species of tax, and which must be admitted to be so, may be direct, and according to his definition, they certainly may—A distiller of spirits which are excised may consume them himself, or sell at a loss—A ship owner may make a losing voyage, and not be able to draw back from the freightor the impost of tonnage laid on his vessel—An individual not being a merchant may import dutiable goods for his own use without intending them for sale, and it is a well known fact that in Virginia large quantities of such goods are imported this way—or an importer, being a merchant, may sell at a loss. In all these cases the tax, be it excise, impost, or duty is paid directly and immediately by the person on whom it is ultimately to fall.
Here then, according to his definition, and according to his reasoning founded on that definition, are direct excises, direct imposts, and direct duties, all of which are taxes. Yet the Constitution expressly prohibits all duties, imposts, and excises from being laid otherwise than in an uniform manner. And in another clause it says all direct taxes shall be laid according to the census.
We must therefore agree that the Constitution expressly contradicts itself, and that the clauses cited from the eighth and ninth sections are inconsistent with each other, or relinquish the Construction contended for by the defendant's counsel, and affix some other meaning to the phrase "direct taxes." And this leads me to state to the court the import which I conceive custom has given it, and which it was understood to have be the framers of the Constitution themselves.
It cannot be denied that the meaning of the words is established by custom, words being arbitrary signs of our ideas. It must also be admitted that if a technical term in any art or science, or an appropriate expression is made use of with reference to that art or science, we are to understand it according to its accustomed meaning in that art or science.
When then the word direct is made use of and applied to taxes by a person acquainted with this subject, we are not necessarily led to look for its abstract meaning, but if we find it has been frequently so applied, and that long usage has given the phrase direct taxes an appropriate meaning, we are no longer to enquire into the meaning of the word direct, but to ask what is generally understood by the phrase direct taxes.
In this enquiry therefore approved writers on the subject of taxation may with propriety be resorted to, in order to discover what meaning usage has affixed to the expression. I shall contend that, long before the Constitution of the United States was framed, a tax upon the revenue or income of individuals, was considered as well as understood to be a direct tax. A tax upon their expences, or consumption an indirect tax—That this is a tax on expence or consumption, and therefore an indirect tax.
It has ever been held and seems an indisputable truth that the revenue of government is drawn from the revenue of individuals, or from the subjects from which that revenue is derived. If the citizens of a community had no income, it is obvious no taxes laid by the government could be collected, as there would be no fund to pay them from.
A tax laid directly on the nett product of land or labor is an appropriation which the government makes to itself directly of a part of the income of the citizen. But there are many proper subjects of taxation such as money at interest, &c. from which a revenue is drawn by individuals; but which for plain reasons it is difficult or inexpedient, perhaps impossible, to tax immediately, and the proprietors would escape from their proportions of the public burdens if not means were invented to subject them to contribute as well as those whose sources of revenue are more apparent—A man may draw a revenue of £. 10,000 a year without any visible source of revenue. By taxing he carriage, his plate, his wines, and other articles of expence and consumption, the government indirectly appropriates to itself a part of his revenue, and he is made to contribute his proportion of the public expence, whereas, if the tax was attempted to be laid directly on his revenue, he might evade the payment of it altogether, by concealing that revenue and the source from whence it was derived.
These taxes are therefore resorted to in all governments; at first view they seem consistent with justice and sound policy, and perhaps it is impossible to prove them to be otherwise, certain it is that where taxation has been carried to any extent they have always been found necessary in practice.
But, as there is no subject on which human ingenuity cannot exert itself, there have not been wanting men who have contended, and that with great ability and much force of reasoning, that even these taxes, though laid upon consumption, must ultimately fall on land, and that therefore simplicity in taxation, which they consider an important object, would be more easily obtained, by laying the tax immediately on that revenue. The objection that this mode of taxation, would be unjust and unequal, on the supposition that it would enable those whose revenue was drawn from secret sources to evade the tax, they assert to be easily refutable.—Having proved as they suppose, that all taxes at last must fall on the nett product of land, they assert that the price of products would rise in proportion, so that the tiller of the soil would be more highly paid for his labor, and in the end would be no sufferer.
These positions have been denied by others, and there are few subjects of political controversy on which the minds of theoretical and practical politicians have been more divided. Volumes have been written on both sides of the question, and the revenue systems of nations have been changed, as one or the other mode has prevailed.
The partizans of direct taxation in France have been distinguished as as a political sect, and known by the appellation of the Oeconomists. This sect reckons among its members some of the ablest writers and greatest ministers ever produced in that country; among the former it will be sufficient to name M. Mirabeau the father, and among the latter M. Turgot, late Comptroller General of the finances.—In England, whose fiscal arrangements include both species of tax, the system of exclusive direct taxation ahs never been adopted by the government, or attempted to be carried into effect. It has however been much canvassed by the political writers of that country.
In the many discussions this subject has given rise to the very terms direct and indirect are made use of and applied to taxes in the very sense I now use them, and never in the sense contended for by the counsel for the defendant.
The court will probably recollect, without my assistance, from their reading, what I now state, but as it is my duty when relying on the authority of books for the support of any argument to save them as trouble as possible, I beg leave to quote the life of M. Turgot written by the Marquis Condorcet, which I have now before me (page 212, London edition of the translation) in giving a detail of a plan of M. Turgot for establishing national assemblies in France, and of the objects to which he hoped to be able to direct the attention of those assemblies, he develops the principles of taxation insisted on by the Oeconomists, of whom he was one as well as M. Turgot; and takes up several pages in endeavouring to prove the superiority of direct over indirect taxes, giving the terms the same force, and meaning that I have applied to them. And in the appendix, article the 2d, page 398, (which the translator has thought proper to separate from the body of the work,) is a treatise "respecting the change of indirect taxes upon consumption, &c. into a direct tax upon the landed interest," in which these expressions are frequently repeated, and always used in the same sense.
A work justly celebrated through Europe and America for the profound sense and great knowledge of the different subjects of political science, particularly of the principles of taxation, which it displays, one frequently quoted in political assemblies, and viewed there with as much respect, and considered almost of as high authority as the writings of the sages of the law are here, Mr. Smith's Wealth of Nations, draws the same distinction between the direct and indirect taxes, III. vol. page 255.
In book the fifth, part the second, he introduces the subject of taxes with this passage, "the private revenue of individuals, as has been shewn in the first book of this inquiry, arises ultimately from three different sources, rent, profit, and wages, every tax must finally be paid from one or other of those three different sorts of revenue, or from all of them indifferently." The work then goes on to give an account of the taxes which are intended to fall on each of these sources of revenue. This account and the reasoning connected with it employ the succeeding pages to page 331, which it takes up the subject of taxes upon consumable commodities, which is commenced by this paragraph.
After going at length into an examination of the different subjects of indirect taxes, or taxes on consumable commodities, the work goes on in page 341 to state that
The sentences immediately succeeding are taken up in proving that a tax on carriages paid annually by the buyer is less felt than a tax paid once for all when it is in the hands of the maker—But as this relates to the policy of the law, and not its constitutionality, I forbear to read it.
The passages I have just read are quoted, not because they are the only ones which authorise my construction, but because they mark out the authors general division of the subject. By examining the context the court will find the words direct and indirect repeatedly used, and invariably applied to taxes in the sense I contend for.
It is no objection to say that neither writers, nor legislators are agreed upon the subject of taxation, and that even the two authors whom I have just cited disagree as to the subject from which revenue is derived, the one supposing it to come only from the nett product of land, the other from the rent of land, the profit of stock, and the wages of labor—Those who dispute most strongly, and differ most widely, generally agree in the use of terms. There are few subjects on which a greater variety of opinions have been entertained than on the different forms of government, some men giving the preference to one form, some to another, yet when the term monarchy, aristocracy, or democracy is made use of, they perfectly comprehend each other, and generally agree to understand it in the same sense. it is of no consequence to the present argument, that the great difference of opinion exists on the question whether direct or indirect taxes are to be preferred, if those who have treated on the subject, however widely they disagree on this point, all mean by direct tax a tax on revenue, or the source from which it is drawn, by an indirect tax, a tax on consumption and expence. It is equally unimportant that they differ as to the subject from which revenue is derived. A carriage is so clearly an article of consumption and expence, that even the counsel for the defendant, will not require any argument to prove this point.
On the whole then, as custom has clearly fixed the meaning of the expression, am I not warranted, independently of the argument which has been drawn from the Constitution, in saying that unless the contrary be clearly shewn, me must presume the framers of the Constitution meant to use it in the sense in which it has been, I will not say generally, but universally understood?
In order to place this matter in a stronger light, if it be necessary, let us suppose the law had been framed on the principles which are insisted to be right by the other side, and that instead of taxing carriages uniformly, Congress had laid the tax according to the census. In this event it would unquestionably have been in the highest degree oppressive in its operation; in some states of the union it would scarcely have been felt, in others it would be a burden too heavy to be borne. If one of the sufferers by the injustice of the law, determined to resist oppression, had brought his case before the court, how forcibly ought the argument drawn from the accustomed meaning of the expression, to operate on the minds of his judges. On the one hand by deciding in favor of such a law, they would give new and arbitrary meaning to language in order to carry into effect a system of oppression and injustice: On the other a construction of the words of the Constitution according to their known and established import would make it not only inconsistent with itself, but strictly conformable to reason and equal justice.
If such a case were to present itself to the court, I cannot entertain a doubt upon the opinion they would form, and yet the same principle applies exactly to the question now presented to their consideration.
Before quitting this part of the subject, I ought to notice an argument, which I confess seems to me to have little connection with the question, but which as it is much relied on by the counsel for the defendant, may perhaps leave an impression on the minds of the court different from what it has on mine.
He has cited Sir James Steuart's principles of political œconomy. As that writer makes a classification of taxes (which is peculiar to himself) and divides them into three kinds, those on alienation which he calls proportional, those on possessions which he calls cumulative, or arbitrary, and those exacted in service which he calls personal, and as in the course of his work he refers to taxes on lands, carriage, and houses to the same class, "the cumulative." The counsel for the defendant infers that a land tax, being a direct tax, one on carriages must necessarily be a direct tax also.
I never denied that taxes, as well as other subjects, moral as well as physical, may be arranged and classed in a great variety of different ways, and that in one mode of arrangement two things may properly be referred to the same class, which in another mode would fall into distinct classes.—For illustration let us instance the science of Botany. In arranging the vegetable world, the system of Tournefort will be found to include in the same class many plants which by that of Linnæus are in different classes, and vice versa; yet if a man discoursing or writing upon Botany, should speak of a class of vegetables by a name used by Linnæus, (for example) and that name was not even found to be in Tournefort, whose mode of arrangement was altogether different, would it be doubted that he meant to designate those plants, and those only which Linnæus had so arranged. So when speaking of direct taxes, the framers of the Constitution must have had in view that classification which divide them into direct and indirect, and not that which arranges them into proportional, cumulative, and personal—Had it been otherwise they would have spoken of cumulative taxes, and then no doubt Steuart's arrangement would have been followed.
If another answer to this argument be necessary, I could observe that indirect being the opposite to direct, and there being no middle term between them, as there is no medium between crooked and straight, it will follow that if, as is supposed on the other side, proportional answers to indirect and cumulative to direct, these two classes include every species of tax, and it was useless and absurd in Sir James Steuart to add a third class, that which he calls personal. Other reasons might readily be suggested in refutation of the argument drawn from Steuart, but I fear I have already been too minute and tedious upon this point, and in no part of the cause does the reasoning of the counsel for the defendant appear less founded.
I have now finished my observations drawn from established usage, and the known and appropriate meaning of the phrase "direct taxes." If, contrary to my expectation and firm conviction, this argument should fail me, and the court should take up a different opinion upon a point that seems to me so clear, it may not be amiss to ask wwhat is the natural import of the expression, and what ought to be its construction if it were to be found only in the Constitution.
To me it seems that its natural import is in favor of the construction I contend for.
It is certain that taxes though paid by persons, and are paid from property—The revenue of government must come from the revenue of individuals mediately, or immediately, directly or indirectly. A tax then on the revenue of individuals is a direct tax, and a tax which falls on that revenue circuitously or indirectly by means of their consumption, or expenditure, is an indirect tax.—Of course a tax on carriages being a tax on consumption or expenditure, falls within the latter class.
If these points are not in my favor, it is needless to go into the consequences that would flow from one or the other exposition of the Constitution; those consequences are not to be regarded by the court. But the counsel for the defendant instead of enquiring into the meaning of the Convention who framed the Constitution, and the people who adopted it by the words they make use of, has put himself in their place, and endeavours to prove that bey his construction only, can the rights and interests of the people be preserved, and therefore that whatever violence it may do to their language, they must have meant as he understood them to mean. This point he has labored with much ingenuity, and it will be proper to examine his arguments in support of it, and enquire which construction will most effectually forward the great ends for which the Constitution was formed.
One of his principal arguments on this head is founded on these positions, that it is a vital principle of the Constitution of the United States, and of all free governments, that taxation and representation should always bear an exact proportion to each other, and that the Constitution is a confederation of states, not a compact of individuals, and he concludes that if carriages may be taxed uniformly, the principle is sacrificed.
These positions appear to me to be incorrect, both in fact and reasoning. In the first place the Constitution, though in some aspects, such as the composition of the Senate, it wears a face of a confederation, its strongest features are those of a government of the people, and though for reasons which I shall by and by endeavour to assign, direct taxes are to be laid according to the census, it is expressly provided that duties, imposts, and excises shall be uniform: The necessary effect of this clause, as we may see by comparing the amount of duties collected in New-York and Pennsylvania, with those of Virginia, is to create a wide disproportion between representation and taxation. His argument on this point either proves too much, that all taxes should be laid according to the census, or, if he will confine it to direct taxes only, it turns in a circle and brings us to the point of enquiry from which it started—What are direct taxes?
The idea that this rule of an exact proportion between representation n d taxation is essential to free government, is certainly a novel one, and I believe if put in practice would be pleasing but to few, and certainly could not be thought just by any. The poor are intitled to representation equally with the rich, and yet it will hardly be contended, that their taxes ought to be in the same proportion, and a poor man who subsists chiefly upon his labor, be obliged to pay as great a sum in taxes as the man who has an income of thousands, because they are equally represented.—Another argument drawn from consequences is, that according to my construction, by purposely selecting particular subjects of taxation, Congress will have the power of favouring some states, and bearing hard upon others.
It must be admitted, that if they are disposed to do so palpable an act of injustice and wickedness, and the people are unable, or unwilling to check them, it will not be in the power of this court to prevent it from being perpetrated, and this argument might have weight if by the construction which the defendants counsel gives of the Constitution, or by any possible formation of government, the body vested with all the all-important powers of legislation and taxation, could be prevented from laying a tax that should operate unequally. In truth if we understand the Constitution either way, unequal taxes may be laid—duties by being laid uniformly may, and occasionally must, bear unequally, and yet the Constitution does not permit their being laid in any other manner. If the people themselves by the controul, which they have over their representatives cannot prevent, or correct the evils, that may flow from this source, I fear it will not be in the power of a court of justice to do it, and if it be, perhaps at some future period, when this court shall be differently composed, the remedy will be found worse than the disease.
It is then urged that this construction is at least an evasion of the spirit of the Constitution—That it will so greatly enlarge the sphere of uniform taxation, that Congress need never resort to direct taxes (as I understand them) and that the regulation in the Constitution, which apportions direct taxes to the census, will become a dead letter.
By either mode of construction Congress will remain equally at liberty to make uniform taxes, and those apportioned according to the census, to bear whatever proportion to each other they may judge expedient, nay, even if the exposition of the Constitution contended for on the other side obtains, there will be no prohibition against their raising the whole supply of government from duties, imposts, and excises, which must be uniform.
The charge of an evasion of the spirit of the Constitution may fairly be retorted. If the tax paid by the buyer of the carriage, was paid in one gross sum instead of being divided into annual payments, the argument for the defendant would still rest on the same basis. It is admitted by his counsel, and cannot be controverted, that the payments being annual does not affect the question. It is also admitted, nay contended for by him, that if the tax were paid by the maker or seller, it would still finally fall on the buyer or consumer.—Yet he insists that though when paid by the maker or seller, it is an indirect tax, it is a direct tax when paid by the buyer or consumer. The difference then is in form and not in substance, and this is substantially a tax which the Constitution has said shall be uniform, and not according to the census. And it is so laid.
But it is said that there is this difference, that the payment of a tax advanced by the importer or manufacturer is voluntary, the payment of this is involuntary, the one is called for with an air of solicitation, the demand of the other is enforced by pains and penalties.
This distinction again is in form, not in substance. it is true that the purchase of durable, or excised goods, may purchase them of any merchant or manufacturer, he chooses to prefer, but let him purchase them where he will the duty must be paid; and the payment of either of these taxes is so far voluntary, that if the consumer is able or willing to do without the subject taxed, he will not be obliged to pay the tax: If from real or fancied necessity he is obliged to purchase it, he is equally burdened with the tax, whether advanced by the merchant, or manufacturer, or paid by himself to the government.
The amount of this proposition of the counsel for the defendant if fairly applied to the case before the court, will stand thus
It is enough to apply the proposition to particular cases, and it carries with it its own refutation.
Another argument is drawn from the clause in the ninth section of the first article which directs that no tax, or duty shall be laid on articles exported from any state. It is said that if this tax be consistent with the Constitution, Congress may tax the products of our soil, and no distinction with reference to taxation can exist between them. That these products cannot be taxed is inferred from the clause just cited: Because it is said if all products may be taxed, those products which are exported will be taxed, which is contrary to the Constitution.
This argument proves nothing, or it proves that no tax whatever can be laid on carriages, or any other articles, whether the produce of our soil, or the work of our industry. Spirits distilled in America from grain are an article manufactured from materials that grow in our country, yet it must be agreed that although a tax cannot be laid on the export of these spirits, they may be excised in the hands of the distiller. The same reason will apply to every object of manufacture or agriculture. So that even if a tax on these things be not distinguishable from one on carriages, the only effect of this reasoning would be to change the proposition that carriages are a subject of direct taxation, and render it necessary for the defendants counsel to prove that the Constitution forbids Congress to raise a revenue upon any article that can, by any possibility, become an object of export.—But this the defendants counsel does not contend for. Indeed Congress (I take for granted) will in every future instance do as they have hitherto done, and allow a drawback on articles exported equivalent to the duty imposed on them.
I have now gone through those objections from the other side which strike me as being material to the question; but as much as has been said with respect to the object which the clause respecting direct taxes contemplates. I beg leave after having endeavoured to shew that the ideas upon it which have been advanced by the opposite counsel are wrong and founded on a mistake of the meaning and true spirit of the Constitution, to state what to my mind appears to have been intended.
No doubt it was meant by those who framed, and those who gave their sanction to that instrument, that it should bear the stamp of right, and of equal justice, it is equally clear that taxes when laid solely with a view to raise a revenue, and not with an intention to encourage some branch of useful industry, or to repress some luxury or vice, ought to be so apportioned that each citizen should bear his due proportion of the public burdens.
Indirect taxes, or those laid on consumption, unless improperly selected, have a fair chance of being equal, or if unequal they bear hard only on the luxurious and extravagant. It was therefore wisely and equitably provided by the Constitution, that these taxes should be uniform.
The same reason would have applied to direct taxes, or those taxes that fall on revenue, or the sources from which it is derived, and probably would have obtained if the situation of a part of the union had not been such that direct taxes uniformly laid would have borne peculiarly hard upon them. The southern states lie under the misfortune of have a large part of their population in slaves, who though they swell the property of individuals, instead of adding to the force or wealth of the community, greatly lessen both. With respect to the first it is unnecessary to speak, and as to the latter it is proved by long experience, as well as reason, that superior skill and industry give an immense advantage to the labor of free hands over that of slaves.—Therefore, though individuals are richer, those states in the union where this species of population prevails, are unquestionably poorer than if it were exchanged for the same number of white inhabitants. For this reason then, if no other existed, it was equitable, wise, and prudent for the southern states to stipulate for a security, that they should be taxed, not according to the estimation of individual wealth, or the numerical amount of their population, but according to the census, in which five slaves are reckoned equal only to three whites.
They might apprehend too that slaves would be selected for taxation as a species of property, a tax which would fall almost exclusively on the southern states, and the article on the subject of representation, would naturally influence this subject and be influenced by it.
With respect to our lands, it is well known that while almost all the lands in the northern states are in a productive state, we who are in the southern division, spread thinly over an immense extent of territory, are able to draw an income from but a small part of our landed property. To lay the tax on the estimated product of land, would be arbitrary and uncertain, and to lay it on its value, would be, with respect to us, in the highest degree burdensome and inequitable.
These taxes are unquestionably (and I think also stock or capital employed in agriculture) designated in the Constitution by the words "capitation or other direct taxes." And here I cannot help observing that Mr. Smith in his Wealth of Nations speaks of capitation taxes as being direct taxes, only when laid upon the laboring class, and that it appears far from improbable that this distinction suggested the express mention that the clause in question makes of all capitation taxes, and that it was intended in order to remove all ambiguity on that point. Whether stock, or capital employed in agriculture, money lent to individuals or vested in the public funds are, or are not, also subjects of direct taxation, it is unnecessary for me now to shew, nor is it necessary that I should enumerate every possible direct tax, as the tax in question clearly does not belong to that class.
To conclude this point, let me ask, whether it can be imagined that carriages were contemplated by the Constitution as property of so sacred and inviolable a nature, as that no tax should ever be imposed on them. Still less could it be intended that they should be taxed in proportion to the census.—The numerous and opulent citizens of New-York and Philadelphia, who indulge in this luxury would be paying farthings, while the inhabitant of Connecticut, Vermont, or Kentucky, who can afford the expence of a carriage, and finds it a convenience in a country residence, must submit to a prohibition or sacrifice perhaps half his income.
With respect to this and all similar subjects of taxation, it must have been intended that they should be laid uniformly, or according to the discretion of Congress; and if any of them should from local circumstances bear more more heavily on one pa t of the union, than on another part, some other subject might be selected as a counterpoise. To make that selection, has been and necessarily must have been left to the wisdom and justice of our fœderal legislature, chosen by the people, and ever under the eye and controul of their constituents.
Having already taken up so much of the time of the court, for which the importance of the subject must plead my excuse, I have nothing more to add on the question of the constitutionality of the law.
Another point of much delicacy, of the highest importance, and of infinitely more intricacy and difficulty than the one we have just quitted, I mean the power of the court by a judicial decision to declare an act of the fœderal legislature null and void, would now require discussion, but the information I have received from the bench, that, though never solemnly decided by the supreme court, it has come before each of the judges in their different circuits, and they have all concurred in the opinion, renders it improper as well as unnecessary for me to argue the question, and I gladly wave the investigation of a subject that demands more leisure, than I have been able to devote to it, and a greater share of abilities and information than has fallen to my lot.
* ↑ Vol. 2. Lib. 5. Chap. 1.
* ↑ Vol. 2. P. 330.