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Statutory exposition from a phrase in a diary is unusual. The words "new charter” applied by President Stiles in a place in his diary to the act of 1745 probably mean or may mean only a new grant to the college. The word, charter [charta), was formerly used for a deed or grant, especially from other than private individuals (Black. Com., chap. 20, Webster's and Burrill's Dicts. on words charta and charter,) as the sovereign or legislature. So President Clap in his argument as to the right of visitation speaks of the “first charter or grant" and Ch. J. Parker in the quotation already made from him of “this grant or charter” of Barvard College. So the great charter, Magna Charta, is a grant bestowing and assuring certain rights and privileges. The statute referred to was a new charter in this sense, a new legislative grant, but what the second president afterwards called it is unimportant.
We have so far not gained much additional light by our patient analysis, but this completes the arguments in favor of repeal, except certain opinions, which were expressed and events which occurred some years subsequently, and which could not influence the act in question or its construction, the opinions being expressed in three anonymous pamphlets from 1755 or ten years after the passage of the act to 1784, nineteen years still later, strengthened as is said by the want of contradiction, and also a suggestion to President Stiles by Governor Trumbull in 1777, and the events the election of Dr. Day and Dr. Woolsey as President, who were not then ordained ministers of the gospel, but who became such before they were admitted to the presidency or assumed its duties. The cases of the president and the fellows are distinct, though perhaps leading separately to similar results.
“Nil agit exemplum, litem quod resolvit lite." It is useless to try to settle an unsettled point by a point, which itself remains unsettled. It is useless to argue that the president may be a layman, and therefore that the fellows may be laymen, until the point assumed be clearly established, and even then the argument will be entirely inconclusive. In the instances of Drs. Day and Woolsey, the corporation judged, we may infer from their acts, that it was sufficient, that they
were ordained ministers, when they were "associated” and became president. This appeared to it to be in substantial conformity with the intent and requirement of the charter. An argument founded upon a particular construction of the charter and statute cannot be supported by a practice under a different coostruction. The votes that the presidential committee in concurrence with them take measures for their “ordination " as well as “induction into office" were adopted by the corporation as a corporate not an ecclesiastical body. They were ordained of course by ecclesiastical councils for the usual reasons and the usual purpose, to preach the gospel.
Wm. BLISS, 51 William St., City of New York.
To be continued.]
ARTICLE VIII.- TAXATION IN THE UNITED STATES.
I. THE RIGHT OF TAXATION.
PHILIPPE AND Co., manufacturers, of Geneva, Switzerland, recently sold a consignment of watches to Brown and Co., of New York, merchants, for one thousand dollars, charges for shipment included. The goods were seized by the government upon arrival at New York, partly for verification of the accompanying invoice, partly as security for the ad valorem duty of twenty-five per centum; that is, they were subject to a farther charge of two hundred and fifty dollars before delivery to the consignees. The full value of them having been already paid the manufacturers, what right had the government, or since the government is but the arm of the law, and the law but the articulate expression of the will of the people, what right bad the people to impose the additional charge? In other words, what exactly are the origin, nature, and limits of the right of taxation.
It is clear to begin with that the perfect legality of the act does not at all determine its moral character. The people is well able to will what it pleases and to express its will with all due formality, but if the thing willed is itself wrong the effect of the law is simply to generalize the wrong by extending it to include all cases of the same kind. Summum jus summa injuria; the worst injustice is the literal construction and strict enforcement of an unjust law. So there is really no property within its reach which the people cannot most lawfully appropriate. But like other moral agents it can rightfully appropriate only what belongs to it; a self-evident truth of ethics and in logic an identical proposition. What the people rightfully appropriates is its own; what is not its own it cannot rightfully appropriate. So in the case supposed, the government is ready if need be to enforce through its tribunals the claim of the manufacturers to the stipulated price of the watches; put upon its defense outside of them it must be able to show that its own title to the duty upon the watches is
equally valid. The whole cost of the goods to Brown and Co., is $1,250, four.fifths of which are the rightful property of the manufacturers; is the remaining fifth equally the rightful property of the government, and if it is, is it so under the same title or under a different one?
I. The earlier title of the two explains itself without difficulty. The manufacturers at Geneva have offered in the open market and subject to no constraint other than the conditions of the market itself a certain number of watches for a certain sum of money, and the merchants at New York, subject only to the same conditions, have accepted the offer; or conversely, one party having sold the goods for the money, the other the money for the goods. Allowance made for errors of judgment and for incidental exigencies of business there has been an exchange of equivalents with the full and free consent of both parties to the exchange, a type of the legitimate transactions of commerce the world over. The result is that Brown and Co. acquire a title to the watches on payment of the money, Philippe and Co. a corresponding title to the money on delivery of the watches; a title issuing clear and indisputable from the transaction itself, anterior to and reaffirmed by all law, respected by the most lawless revolution. Furthermore if we except the case of voluntary gift or bequest there is, in this case, no other title possible. Philippe and Co. must have acquired the money, as Brown and Co. the goods, either with the consent of the other party and in exchange for an equivalent, or without their consent and without an equivalent; that is by force, or by fraud, which is a kind of force.
To qualify the orderly exercise of public power according to law as an act of force, is so repugnant to our democratic sensibilities, and our disposition to generalize is so strong, that we have an elaborate theory which assimilates the title under wbich the government takes the duty upon the goods to the previous title under which the seller takes the value of them. There is supposed to be here too an exchange of equivalents with the consent of both parties to the exchange. What the government, on the one hand, supplies, is the benefits of government, the complex conditions of security to person and property which enable Brown and Co. to import watches and VOL. VII.
keep them on sale. The corpmercial value of an article is the price which it will bring; andlto this value the government has as distinctly contributed as the manufacturers, for in the absence of all government watches could not be made and sold at all. On their side Brown and Co. pay the stipulated price for the value contributed, purchasing protection from the government as they purchase watches from the manufacturers. But this again is only an item in a general account, an incident in a far larger transaction. We are all of us supposed to have found out by actual trial, our own or our forefathers’, of what is called the state of nature, that the full possession of our natural rights to do what we please and have what we want is an irksome and dangerous dignity because exposed to the encroachments of other men in full possession of theirs, a condition in which life becomes a scene of incessant reprisals and society is dissolved into an intolerable chaos of conflicting elements until some stronger man or set of men arises and enslaves the rest. For the better preservation therefore of certain most important rights we have all joined together in ceding the remainder to the State, which is made the common depositary of all the rights ceded that it may become thereby the common guardian of all the rights reserved. So created and according to the stipulations of the original compact the State is pledged to furnish protection to the subject and the subject to pay tribute and render service to the State. All transactions between the two are henceforth the result of a negotiation and the fulfill. ment of a contract, an exchange of equivalents, the discharge by each of two parties of a debt incurred to the other. This is the doctrine of the contrat social, struck out in the first enthusiasms of the French Revolution when the theorists were all busy looking up a modus vivendi for an omnipotent State and an emancipated people. It has so profoundly affected all political thinking ever since, that it is worth pointing out for the bundredth time that there are no facts in it.
1st. The State is not the creation of a compact but the product of an immemorial evolution; and has grown not through successive accretions of rights ceded to the sovereign, but in precisely the opposite direction through successive distributions of rights conquered by the subjects, the partition having