New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1895-05-08
INCOME TAX ARGUMENTS.
ATTORNEY GENERAL OLNEY CLOSES THE
CASE FOR THE GOVERNMENT

Mr.. WHITNEY DELvEs INTO HISTORY. BRINGING
DOWN on HIS HEAD SARCASTIC HITS FROM
MR.. CHoATE-THE LATTER WILL
FINISH HIS SPEECH TO-DAY.
Washington. May THE second days pro-
ceedings OF the reargument OF the income tax
cases began In the Supreme Court OF the United
States at noon to-day. In the presence OF
greatly reduced audience. Among the spectators
who to-day attracted attention was Colonel Will
lam Jay one Of the counsel for the opponents
OF the law. the grandson OF Chief Justice Jay
who was member Of the court when the nrst
decision was made on the subject OF direct taxes.
the celebrated Hylton case Of l7Ji. although no
did not take part In the decision.
Assistant Attorney General Whitney resumed
his argument In support Of the consf!tutionali'y
Of the law under consideration. lie reviewed
the scvernl acts passed by the British Govern
mcnt relating 20 taxation In America. up to the
time OF the adoption Of the Constitution, and the
income-ax law Of Pitt which. he said, was the
model Of all subsequent income tax laws In Eng
land. her colonies and In this country. and which
was. Of course. familiar to the lawyers and
puhIicists Of the United states at the time the
Constitution framed
These Mr. whitney asserted demonstrated
the truth OF the fact that in England at that
time an income tax was held to be duty. and
not tax
Justice Gray inquired II the Privy Council had
not decided that the income tax was tax ana
not a duty? He sad he spoke from general
recollection only. and asked the question be-
cause Mr. Whitney's position seemed to be op-
posed to that decision.
Mr. Whitney replied that he was Of the i'm
preston. not being familiar with that particular
decision that the distinction sought to be en-
forced was with reference TO direct and indirect
taxes
no INCOME TAX IN THE COLONIES.
He then referred to the compilation of tax laws
Of the thirteen colonies prior 10 the establishment
OF the Government made by Oliver Wolcott II
did not show the existence OF any specf income
tax in any colony. The only possible exception
was In the State OF Delaware. where. Mr.. VOL
colt SAYS. by a usage Of assessors an income tax
was laid without authority Of statute II this
could be termed income tax. then. said Mr..
whitney thes. Delawa-e assessors were the
orrina,ors Of the income tax In the United
States The examination OF these colonial laws
resulted in the conclusion that there was no
settled definition of the word In the juris-
prudence II this country. and tha; the court was
.
decisions In previous cases Tor gu'HahCe III oe-
terminng It's meaning.
Recurring then TO the term direct taxes Mr.
Whitney said that the research made by him had
iet 70 conclude that until II had found place in
the American Constitution IT had never been
known or recognized as legal term Adam
Smith did not attempt 10 give hard and last
definition OF the term. The iirst distinction made
as 10 direct and indirect taxes was BY the famous
philosopher John Locke. In his discussion OF sif
Robert Walpoles Excise act Of l'3S. He then said
,ha, di-cc, taxes were those that ultimately !ell
y, land. all others were Indirect taxes. Quota
lions were gwen by Mr.. Whitney from Turgot.
the French political economist, Robert Morris ana
Alexander Hamilton. u show that AT the time az
tho adouii1n of the American Constitution the
question wac not settled. Quoting again from OH
yer Wolrott Mr. Whitney said that ne was in ac-
cord with John Stuart MIL who held that tax
y, houses but not on lands a very fair IN
come tax.
chief Justice Fuller inquired what wolcott rec
ommendcd.
NJ Whitney replied tha, wolco,t had sug-
cested n tax on land. the one that was adopted. a
tax laid according to each States own system.
the whole amount being made up from the several
quotas Of the States. The tax on land included
taxes On houses and elaves. because they were
then generally included with real estate. 1t was
very nearly what Wolcott had recommended.
DIRECT TAXEs ~ STATE CONVENTIONS.
These facts Mr.. Whitney said. made what Sir
lanes stephens would call the environment of the
case and he would next proceed t. consider the
discussion ~ the question Of the meaning Of the
term direct taxes In the several State conventions
In the virginia convention Chief Justice Marshall
might be deemed to be obiter dicta-this in refer
ence 10 the opinion Of the Court In the Hylton
case.
fbicr rus,ica Fuller stated that Mr.. Tucker
had recorded the fact that Mr.. Marshall had ar
c,ed tha, case on one side and the secretary of
the Treasury on the other and that they each
rcpresented their respective individual opinions
II that were the case. then Mr.. Marshall held an
op,nion contrary 10 that expressed by the supreme
| Court In that case.
The reports Of these several state conventions
| however Mr.. Whitney submitted. were not con-
elusive or competent evidence upon the construc-
| ton TO he placed upon the Constitution. Inc re-
| ports were fragmentary at best. and some OF the
| conventions had not been reported at all. Ihe
Constitution was the result ci compromises ana
| whatever might have been the views or members
| EXPRESSED in their State conventions. their inten-
| tions In the general convention were best 10 Dc
| determined by what they did In Congress im'ne-
| diatcly after the Constitution had been adopted
| rather than by what they said or thought In con-
| vention before II was adopted
EARLY LEGISLATION IN CONGRESS-
| In the Congress the question came up when
II was found or believed that they could not get
enough money from customs. whether there
should be an excise or a direct tax imposed.
| Mr.. Hamilton proposed an excise tax on dls-
| tilleries and a bill for that purpose was intro
| duced The first speaker was Madison, who
| advocated a direct tax first and the excise tax
| later Hamilton's bill was passed however.
Madison voting against 1t. 1t contained tax
| I'm some cases the stills themselves This