included within this Union, according to their respective numbers." Sec. IX. § 4 declares that "No capitation, or other direct tax shall be laid, unless in proportion to the census or enumeration hereinbefore directed to be taken;' 1 and § 5, that "No tax or duty shall be laid on articles exported from any state; " and § 6, that "No preference shall be given by any regulation of revenue to the ports of one state over those of another; nor shall vessels bound to or from one state be obliged to pay duties in another." Sec. X. § 2 provides that "No state shall, without the consent of Congress, lay any imposts or duties on imports or exports, except what may be absolutely necessary for executing its inspection laws;" 2 and § 3, that "No state shall, without the consent of Congress, lay any duty of tonnage." 3

§ 272. In examining this language, we may consider, first, What powers of taxation are held by Congress; and, secondly, What powers are held by the several states.

tent.

The first of these questions may be subdivided, so that we may separately examine (1) the purposes for which taxes may be laid and collected; (2) the kinds of taxes; (3) the means and methods of enforcing the power, and (4) its exThis last subdivision will lead us to the final inquiry, how far the corresponding function of the states is limited. First. What Powers of Taxation are held by Congress. I. The Purposes for which Taxes may be Laid and Collected.

§ 273. Congress has power "to lay and collect taxes, etc., pay the debts and provide for the common defence and general welfare of the United States." Do these two clauses

to

1 See De Treville v. Smalls, 98 U. S. 517. ED.

2 The right to enact inspection laws is not granted to Congress, but is reserved to the states. Fees imposed to carry such laws into effect must not exceed what is absolutely necessary for their proper execution; but if within that limit the law is valid until Congress sees fit to alter it, although its effect is to place a duty on imports and exports. The scope of inspection laws is large. Neilson v. Garza, 2 Woods, 287. ED.

3 As to the meaning of "tonnage ' see Inman Steamship Co. v. Tinker, 94 U. S. 238; Ouachita Packet Co. v. Aiken, 4 Woods, 208. ED.

contain two separate and distinct powers, or is the latter a limitation upon the other? In other words, does the Constitution, by this language, confer upon the legislature a general faculty of taxation, and also another general capacity to pay public debts and provide for the common defence and general welfare; or does it confer a limited power of taxation, by restricting the purposes for which taxes may be laid, and confining them to the payment of debts and provision for the common defence and general welfare? The latter construction is the one which has been almost universally adopted, although the language, taken apart from the context, is susceptible of the other. There are two grounds for preferring the interpretation which has been generally received. Both these clauses are found in a subsection which relates to taxation; and it would be doing violence to the context to wrest one of these from its natural connection and make it refer to a subject entirely different. But again if the construction should be adopted which regards the second clause as an independent grant of power, it would, in effect, be making our general government unlimited. Providing for the common defence and general welfare includes everything which any goverment could possibly do; and a grant of power in these broad terms would be the same as making Congress omnipotent, equal in the extent of its functions to the British Parliament.

§ 274. The subsection should, therefore, be understood as though it read: Taxes may be laid and collected in order to pay debts and provide for the common defence and general welfare. Thus the Congress does not possess an absolutely unlimited power of taxation. It can only resort to this high attribute for one or more of three purposes, payment of debts, the common defence, the general welfare. The defence must be common, and the welfare general. But, after all, this leaves a sufficiently wide field for the legislative operations. Money may be raised to pay any debts however contracted, whether now existing or to become due at a future time. Common defence and general welfare are terms of the broadest generality; and within them can be easily

included all the objects for which governments may legiti mately provide.

§ 275. What measures, what expenditures will promote the common defence or the general welfare, Congress can alone decide, and its decision is final. It is certainly not necessary that any particular expenditure should be spread over the whole country, to bring it within the meaning of a defence which shall be common, or a welfare which shall be general. All the disbursements of the government must be met by revenue of some kind, and must finally be paid by some species of taxation, except that small portion which may be provided for by the sale of public property. Congress expends vast sums of money in the erection and adornment of a capitol, in furnishing a library, in the purchase of pictures, statues, and busts, in endowing a scientific institution; but it is not claimed that these disbursements are not made for the general welfare. A fort in New York is for the common, not local, defence. In short, the legislature is not trammelled by these provisions; it has ample scope and verge in which to indulge its proclivities to raise and expend

money.

II. The various Kinds of Taxes.

§ 276. Congress may lay and collect "taxes, duties, imposts, and excises." Another clause speaks of capitation and other direct taxes. Let us inquire into the meaning of these various terms. The word "taxes" is generic, and includes all species; the words "duties," "imposts," "excises," "capitation," "direct" and "indirect" taxes, are specific instances and examples of the genus tax. It is plain that if the Constitution had said that Congress may lay and collect taxes, and there had stopped, it would have conferred all the power which is now granted. The specifications were only added for greater caution. "Duties" and "imposts," as commonly used, are synonymous, although "imposts is etymologically a word of broader meaning. They are especially appplied to those sums of money demanded by the government for the privilege of importing or exporting mer

chandise; although "duties " also describes fixed sums paid on ships and other instruments of commerce, as tonnage duties and the like. "Excises" is a word of wide significance, and includes almost all forms of tax which are not direct, and which are not strictly "duties." The various payments required by the existing internal revenue laws are examples of excises. Payments of a percentage upon incomes, upon sales, upon the circulation of banks, upon the value of manufactured articles, upon the products of the soil; license fees for carrying on different branches of trade and business; stamps upon written instruments, judicial proceedings, articles of manufacture, are all excises.

Capitation or poll taxes are fixed sums of money paid by or for each person without reference to his property or busi

ness.

-

§ 277. All taxes are separated into two classes, the direct and the indirect. Direct taxes include those assessed upon land, and those which pass under the denomination of capitation or poll, and probably include no others. In direct taxes would then embrace all the remaining species, and would be co-extensive with duties, imposts, and excises. I say this division is probably correct, for the question has never yet been authoritatively decided by the Supreme Court of the United States; although in an early case, which will be referred to in the following subdivision, the judges expressed a very decided opinion that no other taxes were "direct," within the meaning of the Constitution, but such as were laid upon lands, and such as were strictly capitation.

1 Since this was written the point has been directly adjudicated in accordance with the suggestion in the text, which was quoted with approbation by Swayne, J., in a very interesting judgment. Springer & United States, 102 U. S. 586. And the "succession tax" imposed by the acts of June 30, 1864, and July 13th, 1866, upon every "devolution of title to any real estate was not a "direct tax," but an "impost or excise," and therefore was constitutional. Scholey v. Rew, 23 Wall. 331. ED.

III. The Means and Methods of enforcing the Taxing Power.

§ 278. The Constitution provides that no capitation or other direct tax shall be laid unless in proportion to the census; that direct taxes shall be apportioned among the several states according to their population; that duties, imposts, and excises shall be uniform throughout the United States; and, in immediate connection with the last provision, that no discrimination shall be made in regulations of the revenue in favor of any state. Finally, Congress is forbidden to lay duties on articles exported from any state. What is the meaning of these provisions? Two principles apply to the entire subject of taxation: Apportionment of direct, and uniformity of indirect, taxes. Direct taxes are to be laid and collected in one manner; all others in a different mode.

§ 279. Direct taxes must all be apportioned among the several states according to their population. Thus if Congress proposes to levy a direct tax, it must first fix the whole amount of money to be raised in this manner; and this amount it must divide among all the states in sums proportioned to the number of inhabitants in each. That is to say, the same process must be gone through with which is adopted in ascertaining the number of representatives to which each state is entitled. It is evident, therefore, that the raising of direct taxes involves a large amount of labor, calculation, and adjustment. But the Constitution is peremptory, and a statute purporting to lay and collect a tax of this kind in any other manner would be a mere nullity.

§ 280. Imposts, duties, and excises, whether laid upon imported goods, upon the instruments of foreign commerce, or upon internal articles, productions, and labor, are only required to be uniform throughout the United States; that is, the rate fixed for any article or subject must be the same in all parts of the country. It is not necessary that all articles should be subjected to the burden, or that all upon which a tax is laid should bear the same rate. But when a rate has been determined for any one subject, that must be retained for the same species in all the states. Neither is it