by any one I knew. I might have met an attorney's clerk accustomed to bring me papers, or possibly my own clerk. It required some courage to face this danger, and I give myself infinite credit for the effort I have made. I have been highly lucky; not recognized a single face I had seen before! My morning lessons were private, but to learn figures it was of course indispensably necessary to mix with others. I met soveral dancing masters from the country, dashing young shopkeepers, ladies qualifying themselves for governesses, etc., etc. I have attended so diligently and made such progress, that I verily believe that I pass for a person intending to teach the art myself in the provinces. I entered by the name of Smith; but my usual appellation is the gentleman.'"

How he danced finally into the affections of Miss Scarlett, the daughter of Sir J. Scarlett, then attorneygeneral, and afterward Lord Abinger, is told in the journal. And how he rose to the office of attorneygeneral, and then filled successively the posts of Chancellor of Ireland, of Chief Justice of England, and of Chancellor of England, is detailed by himself, his biographer, and his reviewer. His great success is to be attributed to a combination of several elements. He was not, indeed, an eloquent speaker; he had no pretensions to the forensic splendor which distinguished Erskine and Brougham; he was far behind his own father-in-law, Scarlett, in the tact of so far losing himself in the jury as to become a thirteenth juryman and thus to draw them to himself. He had no patrician or business connections to begin with. He had no skill as an electioneerer. On the other hand, he was transparently honest, and he was honest to the very core. He had a conscientious industry that never flagged until every question that ought to be settled in any particular case was explored. He had strong sense; unflinching courage, and thorough kindliness. The history of Lord Campbell shows that genius is not requisite to professional distinction, but that that distinction can be achieved by men of abilities not much above the average. The conditions, however, are honesty, industry and kindliness.

The following extracts may illustrate the character of the diary:

"To prepare you for the following jest, I must tell you that last session Lyndhurst carried a job through Parliament whereby he appointed his two secretaries, very foolish fellows, commissioners of lunatics. I showed Lyndhurst and Brougham a proof-sheet giving an account of Cardinal Wolsey's fool being made a present of to the King, with this note: A fool was so necessary to the establishment of a chancellor that we shall find one in the household of Sir Thomas More. It is very doubtful when chancellors ceased to have any such character about them.' I afterward privately suggested to Brougham that Lyndhurst knew better how to provide for his fools thau making a present of them to the Queen and Prince Albert, but that this was so near the truth that I did not venture to compliment him upon it. Brougham: 'Oh, a great man ought always to hear the truth.' He then runs up to Lyndhurst and tells him how Campbell had been com

newspaper, which I immediately found in the robingroom, contained an article on the subject, written by Brougham, and concluding with those words. They made Melbourne very angry, and gave mortal offeuse to the king, and they helped to deprive Brougham of the great seal when the Whigs were restored in the spring."

"Of all the public men I have ever known, Lord Melbourne was approached with the greatest pleasure and satisfaction. He cannot be said to have speedily put people at their ease, which indicates to a certain degree a protecting, patronizing, condescending tone. From the first instant of meeting, all who came into his presence felt themselves on a footing of perfect equality with him. The impression made by his elegant figure and handsome countenance was every moment confirmed by his manners. He seemed to have no reserves, and to make every one his confidant. Yet without any duplicity or deceit he was exceedingly prudent, and to those only whom he knew that he could perfectly trust did he say any thing that he wished not to be repeated. Then he had singular rectitude of judgment and much vigor in cases of emergency, his courage always rising with the danger. Although by no means a finished rhetorician, he spoke very impressively, and when properly roused, he could make Brougham and Lyndhurst quail. His great defect was that he had no fixed system of policy. In his heart he was inclined to conservatism. He was negligent in superintending the general affairs of the State, leaving every thing to the heads of departments, and in conducting the government business in the House of Lords he sometimes showed the most unaccountable apathy, quietly submitting to defeat when he might at all events have made a glorious resistance. Imitating the gods of Epicurus, he was contented with indolence and luxury, and cared little about the active exercise of power."

Once more attention may be called to the admirable character of the Riverside reprints. In view of the cheap and careless way in which the English periodicals are sometimes reproduced, it is a comfort to meet the large type and the good paper which show that we have the book in its best form. The eye can read without fatigue, and the mind receive without suspicion that what is read is a careless misprint.

PARTNERSHIP AND INDIVIDUAL CREDITORS.

NEW JERSEY COURT OF CHANCERY, OCTOBER, 1880.

DAVIS, Assignee, v. HOWELL, Assignee.

A firm made an assignment for the benefit of their creditors, after which each partner made an assignment for the benefit of his creditors. The firm estate was sufficient to pay only eleven per cent of the firm indebtedness. Held, that the creditors of the firm could not resort for the deficiency to the individual estate of either partner until the individual creditors of such partner were satisfied.

"On the 14th day of November, 1834, a few minutes before ten o'clock in the morning, as I was walking down to the Court of King's Bench, the Lord Chancellor drove past me at a quick pace on his way to his court. Seeing me he pulled the check-string of his carriage and beckoned to me to approach. I ran up. Lord Chancellor: How do you do, Sir John Campbell, Mr. Attorney no longer! We are all out! It was done yesterday at Brighton. Melbourne went down Prime Minister and returned a simple individual. I am going to give a few judgments before delivering up the great seal. Good-bye, Sir John!' He did not say to me, 'The Queen has done it all.' But the Times

swer.

J. F. Dumont, for complainant.

G. M. Shipman and J. G. Shipman, for answering defendants.

RUNYON, Chancellor. John C. Bennett and James M. Andrews were, on or about the 10th of February, 1876, partners in business in Phillipsburg. On that day they made an assignment under the assignment act, for the equal benefit of their creditors, to the complainant, William M. Davis. Five days after the making of that assignment Andrews made an assignment under the act for the equal benefit of his creditors to

the complainant and Joseph Howell, and about the same time Bennett made a like assignment to Sylvester A. Comstock and Charles F. Fitch. The partnership estate will pay a dividend of only about eleven per cent of the partnership debts. Most of the partnership creditors have put in their claims under the assignment of Andrews, and claim and insist upon a proportionate participation with his individual creditors therein as to so much of their claims as may not be paid out of the partnership estate, and they threaten the complainant and his co-assignee of Andrews' estate with legal proceedings if their demand be not complied with. The complainant therefore comes into this court for protection and instructions as to his duty in the premises. His co-assignee, Howell, is a creditor of Andrews' estate, and he is made a defendant.

The question presented has been often discussed, and though there exists some contrariety of judicial determination upon it, must be considered as settled by the great weight of authority. The rule is laid down in the text-books that joint debts are entitled to priority of payment out of the joint estate, and separate debts out of the separate estate. Story's Eq. Jur., § 675; Snell's Prin. of Eq. 419; Story on Part., § 376; Kent's Com. 64, 65; Pars. on Part. 480. And though the propriety of the rule has been often and persistently questioned on the ground that it is a violation of principle, and devoid of equity, and was originally adopted from considerations of convenience only, and in bankruptcy cases, and not on principles of general equity, yet it is so firmly established that it must be regarded as a fixed rule of equity. Its history is so well known, and has been so often stated, that it is profitless to repeat it. It was declared in 1715, in Ex parte Crowder, 2 Vern. 706; it was affirmed by Lord Hardwicke, and though Lord Thurlow refused to follow it, it was restored by Lord Loughborough and followed by Lord Eldon, and it has existed ever since in the English chancery. It has an exception where there is no joint estate and no solvent partner. But where there is any joint estate the rule is to be applied. That part of the rule which gives the joint creditors a preference upon the joint estate has been repeatedly recognized in this State. Cammack v. Johnson, 1 Gr. Ch. 163; Matlack v. James, 2 Beas. 126; Mittnight v. Smith, 2 C. E. Gr. 259; Scull v. Alter, 1 Harr. 147; Curtis v. Hollingshead, 2 Gr. 402; Brown v. Bissett, 1 Zabr. 46; Linford v. Linford, 4 Dutch. 113. In Scull v. Alter the Supreme Court recognized the rule in all its parts. Chief Justice Hornblower, by whom the opinion of the court was delivered (the question arose under an assignment under the Assignment Act, and was the same as is presented in this case), said: "But if it is an assignment not only of the partnership effects and property of the firm of Carhart & Britton, but also an individual and several assignment by them of their respective and several estates, then it must be treated as such. estates and debts must be marshalled; the partnership effects applied in the first instance to the partnership debts; the effects of Carhart applied in the first instance to the payment of his separate debts, and in like manner the effects of Britton to the payment of debts due from him individually."

The

In Connecticut the rule is not followed, and that part of it which gives the separate creditors a preference upon the separate estate has been repudiated. Camp v. Grant, 21 Conn. 41. It has been repudiated also in certain other States. Bardwell v. Perry, 19 Vt. 292; Emanuel v. Bird, 19 Ala. 596. But the doctrine is recognized elsewhere, and has been established after thorough discussion and careful consideration. In Wilder v. Keeler, 3 Paige, 167, Chancellor Walworth, after a full discussion of the subject, gives the sanction of his weighty opinion to the rule as a doctrine of equity. He says: "In the case now under considera

tion there was at the death of G. F. Lush a large joint fund belonging to the partnership, out of which the joint creditors were entitled to a priority of payment, and out of which several of the joint creditors who have come in under this decree have actually secured a portion of their debts. Nothing but an unbending rule of law should, under such circumstances, induce the court to permit them to come in for the residue of their debts, ratably, with the separate creditors. The amount of the fund which will remain after paying the separate creditors, being a fund which could not be reached at law by the joint creditors whose remedy survived against the surviving partner alone, must be considered in the nature of equitable assets, and must be distributed among the joint creditors, upon the principle of this court that equality is equity." The doctrine was recognized in Morgan v. Skidmore, 55 Barb. 263. In Pennsylvania in Bell v. Newman, 5 S. & R. 78, 91, 92, Gibson (afterward chief justice), in a dissenting opinion, strongly supports the rule as one founded on the most substantial justice. In Black's Appeal, 44 Penn. St. 503, and again in McCormack's Appeal, 55 id. 252, the doctrine is completely recognized and affirmed. In South Carolina, in Woddrop v. Price, 3 Desauss. 203; Tunno v. Trezevant, 2 id. 264, and Hall v. Hall, 2 McCord's Ch. 269, the doctrine was held to be a doctrine of equity. In Massachusetts it is established by statute. In Murrill v. Neill, 8 How. 414, it is recognized by the Supreme Court of the United States.

The objection that is always pressed as the conclusive argument against it is that partnership debts are several as well as joint, and it is urged that therefore the partnership creditor has an equal claim upon the individual estate with the separate creditor. But it is beyond dispute that in equity the former has a preferred claim upon the partnership estate. To accord to him an equal claim as to the balance of his debt which the partnership assets may not be sufficient to satisfy with the individual creditor, would be to give him an advantage to which he is not equitably entitled. If he obtains a legal lien on the separate estate he will not be deprived of it. Wisham v. Lippincott, 1 Stockt. 353; Randolph v. Daly, 1 C. E. Gr. 313; National Bank v. Sprague, 5 id. 13; Howell v. Teel, 2 Stew. Eq. 490. But if he has no such lien and the assets are to be marshalled in equity, that same equitable doctrine by which the partnership assets are devoted in the first place to the payment of his debt to the exclusion of the separate creditor, and to which he is indebted for the preference, will, in like manner and for like reason, give the latter preference upon the separate property. Such was the view of Chancellor Kent. He says: "So far as the partnership property has been acquired by means of partnership debts, those debts have in equity a priority of claim to be discharged, and the separate creditors are only entitled in equity to such payment from the surplus of the joint fund after satisfaction of the joint debts. The equity of the rule, on the other hand, equally requires that the joint creditors should only look to the surplus of the separate estates of the partners after payment of the separate debts. It was a principle of the Roman law, and it has been acknowledged in the equity jurisprudence of Spain, England and the United States, that partnership debts must be paid out of the partnership estate, and private and separate debts out of the private and separate estate of the individual partner." 3 Kent's Com. 64, 65. The obvious infirmity of the objection to the rule is that it leaves out of consideration the fact that it is to equity that the joint creditor is indebted for his preference. It is also urged that instead of the rule, it would be more equitable to require the joint creditor to have recourse to the partnership property before allowing him to participate in the separate estate, on the equitable ground that he has two funds for the payment of

It

his debt while the separate creditor has but one; but the rule as established is a rule of justice and equity. It has for its basis the presumption that joint debts have been contracted on the credit of the joint estate, and separate debts on that of the separate estate. has the weight of great authority and long establishment, notwithstanding persistent objection and some fluctuation, and it is based on equitable principles. Sound policy is in its favor. Though there may be, as there are in the case of all such rules, instances in which it works unsatisfactorily, yet that on the whole and as a rule it has not operated unjustly is evidenced by the fact that it has existed so long (Ex parte Crowder was decided in 1715), notwithstanding opposition, and that in Massachusetts at least it has, in the face of the opposition referred to, been established by legislative authority, and that too as lately as 1838. In this State it has, as has been shown, the sanction of our judicial tribunals, and it is too firmly established to be disturbed. It is true that in Wisham v. Lippincott, 1 Stockt. 353, 356, the chancellor expressed strong doubt of its correctness as a general rule; but in the other cases before cited, both previous and subsequent, the rule has been recognized without any expression of disapprobation or dissatisfaction.

There will be a decree that the joint assets be first applied to the payment of the joint debts, and the separate assets to the separate debts, and that the joint creditors may participate in any surplus of the separate assets which may remain after payment of the separate debts. The costs of the parties will be paid out of the funds represented by the complainant-the partnership estate and Andrews' estate in equal shares.

THE INCOME TAX CONSTITUTIONAL. SUPREME COURT OF THE UNITED STATES, JAN. 24, 1881.

SPRINGER, Plaintiff in Error, v. UNITED STATES. An income tax is not a direct tax within the meaning of the Federal Constitution, and need not be apportioned among the several States according to their respective numbers in order to render it constitutional. Direct taxes, within the meaning of the Federal Constitution, are only capitation taxes as expressed in that instrument, and taxes on real estate.

IN

N error to the Circuit Court of the United States for the Southern District of Illinois. The opinion states the case.

SWAYNE, J. This is an action of ejectment brought by the defendant in error. The title relied upon was derived from a sale to satisfy the income tax assessed against the plaintiff in error, which he had failed to pay.

In June, 1866, the proper officer delivered to him a notice in due form requiring him to make out a list of his income, gains and profits during the year 1865. He thereupon made such statement, dated June 21, 1866, and delivered it to the officer, with a protest against the right of the officer to make the demand. The statement was handed over to the collector of the district. The plaintiff in error refused payment. On the 19th of November, 1866, the collector served a notice upon him, that unless he paid the tax within ten days it would be collected, with a penalty of ten per cent, by the distraint and sale of his property. The plaintiff in error still refusing to pay, the collector caused a warrant to be issued and levied upon the premises in question and the property was thereafter advertised, exposed to sale and bid in by the United States. A deed was made to the purchaser and duly recorded. Owing to a defect touching that instrument a subsequent deed was executed to the same grantee. The latter bears date April 17, 1874, and is the one here in question.

This action was instituted by the United States to recover possession of the premises. Upon the trial it was agreed by the parties, that at the time the premises in question were seized and distrained, the plaintiff in error had no goods or chattels known to the collector or his deputy out of which the tax and penalty could have been made. The introduction of the deed in evidence was objected to upon several grounds. The objections were overruled and exceptions were taken. As all the objections appear in the assignments of error, it is deemed unnecessary here to reproduce them. It was also proved that the premises sued for consisted of two lots or tracts of land in the town of Springfield, Illinois. There was a house upon one of the tracts and a barn on the other. They were inclosed together and the house and both tracts were occupied by the plaintiff in error and his family as a homestead. They were assessed separately for State taxation.

The evidence being closed, the court instructed the jury-"That the deed in question is a valid instrument and transferred the title of the defendant in the premises to the United States," and "that the laws or acts of Congress mentioned in said deed were valid enactments at the time and authorized the proceedings taken in the premises."

The plaintiff in error excepted to each of these instructions. He also submitted a series of instructions on his part, all of which were refused, and he excepted as to each one. They also appear in his assignments of error and will be considered in that connection. The jury found a verdict in favor of the United States and judgment was entered accordingly. This writ of error was thereupon sued out, and the plaintiff in error, who was the defendant below, has thus brought the case into this court for review.

There are ten assignments of error. The first one is thus expressed: "The tax which was levied on the plaintiff's income, gains and profits, as set forth in the record, and by pretended virtue of the acts of Congress and parts of acts therein mentioned, is a direct tax."

This presents the central and controlling question in the record. It is fundamental with respect to the rights of the parties and the result of the case. This point will be last considered. Many of the other assignments are reproductions of the same things in different forms of language. They will all be responded to without formally restating any of them. This will conduce to brevity without sacrificing clearness, and will not involve the necessary omission of any thing proper to be said.

The plaintiff in error advises us by his elaborate brief" that on the trial of the cause below the proceedings were merely formal," and that "no arguments or briefs were submitted, and only such proceedings were bad as were necessary to prepare the case for the Supreme Court."

This accounts for the numerous defects in the record as a whole. It was doubtless intended that only the question presented in the first of the assignments of error should be considered here. In that respect the record is full and sufficient. Other alleged errors, however, have been pressed upon our attention and we must dispose of them. There is clearly a misrecital in the deed of one of the acts of Congress to which it refers. By the act of the 30th of March, 1864, was clearly meant the act of June 30th, in the same year. There is no act relating to internal revenue of the former date. But the plaintiff in error cannot avail himself of this fact for several reasons.

The point was not brought to the attention of the court below and cannot therefore be insisted upon here. It comes within the rule falsa demonstratio non nocet. It was the act of June 30, 1864, as amended by the act of March 3, 1865, that was in force when the

tax was assessed. The latter act took effect April 1, 1865, and declared that "the duty herein provided for shall be assessed, collected and paid upon the gains, profits and income for the year ending the 31st day of December next preceding the time for levying, collecting and paying said duty."

The tax was assessed for the year 1865 in the spring of 1866 under the act of 1865, according to the requirements of that act, and we find upon examination that the assessment was in all things correct. See 13 Stat., 479. The criticism of the plaintiff in error in this regard is therefore without foundation.

The proceedings of the collector were not in conflict with the amendment to the Constitution, which declares that "no person shall be deprived of life, liborty or property without due process of law." The power to distrain personal property for the payment of taxes is almost as old as the common law. Cooley on Taxation, 302. The Constitution gives to Congress the power "to lay and collect taxes, duties, imposts and excises." Except as to exports, no limit to the exercise of the power is prescribed. In McCulloch v. Maryland, 4 Wheat. 431, Chief Justice Marshall said: "the power to tax involves the power to destroy." Why is it not competent for Congress to apply to realty as well as personalty the power to distrain and sell when necessary to enforce the payment of a tax? It is only the further legitimate exercise of the same power for the same purpose. In Murray's Lessee v. Hoboken Land Co., 18 How. 274, this court held that an act of Congress authorizing a warrant to issue, without oath, against a public debtor, for the seizure of his property, was valid; that the warrant was conclusive evidence of the facts recited in it, and that the proceeding was "due process of law" in that case. See, also, DeTrouville v. Smalls, 98 U. S. 517; Sperry v. McKinley, 99 id. 496; Miller v. The U. S., 11 Wall. 268, and of Tyler v. Defrees, id. 331.

The prompt payment of taxes is always important to the public welfare. It may be vital to the existence of a government. The idea that every tax-payer is entitled to the delays of litigation is unreason. If the laws here in question involved any wrong or unnecessary harshness, it was for Congress, or the people who make congresses, to see that the evil was corrected. The remedy does not lie with the judicial branch of the government.

The statute of Illinois had no application to the point whether the premises should be sold by the collector en masse or in two or more parcels. The fact that the house was on one lot and the barn on the other; that the whole was surrounded by a common inclosure and that the entire property was occupied as a single homestead, rendered it not improper for the collector to make the sale as it was made. No suspicion of bad faith attaches to him. He was clothed with a discretion, and it is to be presumed that he exercised it both fairly and well. Olcott v. Bynum, 17 Wall. 49.

Certainly the contrary does not appear. If the tax was not a direct tax, the instructions given by the court, brief as they were, covered the whole case, and submitted it properly to the jury.

The plaintiff in error was entitled to nothing more. The fourth instruction which he asked was as follows: "That a party claiming title-to land under a summary or extraordinary proceeding, must show that all the indispensable preliminaries to a valid sale, which the law and the Constitution have prescribed, have been complied with; and if they believe from the evidence that the plaintiff has failed to show that all the requirements of the law have been complied with in the assessment and levy of said tax, the service of said notice, the issuance of said warrant and the execution thereof, in the advertisement and sale of said property, in the making and execution of said deed, and in all

the other requirements of the law, then they will find for the defendant."

This instruction was liable to several fatal objections. It was too general and indefinite. It left it for the jury to decide what were the "indispensable preliminaries" required by the law and Constitution in the numerous particulars specified. It referred to matters to which the attention of the court below does not appear to have been called, and in regard to which, if this had been done, the requisite proof would doubtless have been supplied. It falls within the principle of the rule so often applied by this court, that where instructions are asked in a mass, if one of them be wrong the whole may be rejected. The record does not purport to give all the testimony, and its defects are doubtless largely due to the mode in which the case was tried, and the single object already stated which the parties then had in view. The instruction was properly refused.

To grant or refuse a new trial was a matter within the discretion of the court. That it was refused cannot be assigned for error here. Several other minor points have been earnestly argued by the learned plaintiff in error, but as they are all within the category of not having been taken in the court below, we need not more particularly advert to them.

This brings us to the examination of the main question in the case. The clauses of the Constitution bearing on the subject are as follows: "Representatives and direct taxes shall be apportioned among the several States which may be included within this Union, according to their respective numbers, which shall be determined by adding to the whole number those bound to service for a term of years, and excluding Indians not taxed, three-fifths of all other persons."

**

*No capitation, or other direct tax shall be laid unless in porportion to the census hereinbefore directed to be taken."

Was the tax here in question a direct tax? If it was, not having been laid according to the requirements of the Constitution, it must be admitted that the laws imposing it and the proceedings taken under them by the assessor and collector for its imposition and collection were all void.

Many of the provisions of the Articles of Confederation of 1777 were embodied in the existing organic law. They provided for a common treasury and the mode of supplying it with funds. The latter was by requisitions upon the several States. The delays and difficulties in procuring the compliance of the States, it is known, was one of the causes that led to the adoption of the present Constitution. This clause of the articles throws no light on the question we are called upon to consider. Nor does the journal of the proceedings of the constitutional convention of 1787 contain any thing of much value relating to the subject.

It appears that on the 11th of July, in that year, there was a debate of some warmth involving the topic of slavery. On the day following, Governor Morris, of New York, submitted a proposition "that taxation shall be in proportion to representation." It is further recorded in this day's proceedings, that Mr. Morris having so varied his motion by inserting the word direct, it passed nem. con., as follows: "Provided always that direct taxes ought to be proportioned to representation." 2 Madison Papers by Gilpin, pp. 1079, 1080, 1081. On the 24th of the same month, Mr. Morris said that "he hoped the committee would strike out the whole clause. * He had only meant it as a bridge to assist us over a gulf; having passed the gulf, the bridge may be removed. He thought the principle laid down with so much strictness liable to strong objections." Idem. 1197. The gulf was the share of representation claimed by the Southern States on account of their slave population. But the bridge remained.

*

*

The

builder could not remove it, much as he desired to do So. All parties seem thereafter to have avoided the subject. With one or two immaterial exceptions, not necessary to be noted, it does not appear that it was again adverted to in any way. It was silently incorporated into the draft of the Constitution as that instrument was finally adopted. It does not appear that an attempt was made by any one to define the exact meaning of the language employed.

In the 21st number of the Federalist, Alexander Hamilton, speaking of taxes generally, said: "Those of the direct kind, which principally relate to land and buildings, may admit of a rule of apportionment. Eeither the value of the land, or the number of the the people, may serve as a standard." The thirtysixth number of that work, by the same author, is devoted to the subject of internal taxes. It is there said, "they may be subdivided into those of the direct and those of the indirect kind." In this connection land taxes and poll taxes are discussed. The former are commended and the latter are condemned. Nothing is said of any other direct tax. In neither case is there a definition given or attempted of the phrase "direct tax."

The very elaborate researches of the plaintiff in error have furnished us with nothing from the debates of the State Conventions, by whom the Constitution was adopted, which gives us any aid. Hence we may safely assume that no such material exists in that direction, though it is known that Virginia proposed to Congress an amendment relating to the subject, and that Massachusetts, South Carolina, New York and North Carolina expressed strong disapprobation of the power given to impose such burdens. 1 Tucker's Bl., pt. 1, App. 235.

1

Perhaps the two most authoritative persons in the convention touching the Constitution were Hamilton and Madison. The latter, in a letter of May 11, 1794, speaking of the tax which was adjudicated upon in Hylton v. The United States, 3 Dall. 171, said: "The tax on carriages succeeded in spite of the Constitution by a majority of twenty, the advocates of the principle being reinforced by the adversaries of luxury." 2 Mad. Writings (pub. by Congress.), p. 14. In another letter of the 7th of February, 1796, referring to the case of Hylton v. United States, then pending, he remarked: "There never was a question on which my mind was better satisfied, and yet I have very little expectation that it will be viewed in the same light by the court that it is by me." Id. 77. Whence the despondency thus expressed is unexplained.

Hamilton left behind him a series of legal briefs, and among them one entitled " Carriage tax." See vol. 7, p. 848 of his works. This paper was evidently prepared with a view to the Hylton case, in which he appeared as one of the counsel for the United States. In it he says: "What is the distinction between direct and indirect taxes? It is a matter of regret that terms so uncertain and vague in so important a point are to be found in the Constitution. We shall seek in vain for any antecedent settled legal meaning to the respective terms. There is none. We shall be as much at a loss to find any disposition of either which can satisfactorily determine the point." There being many carriages in some of the States, and very few in others, he points out the preposterous consequences if such a tax be laid and collected on the principle of apportionment instead of the rule of uniformity. He insists that if the tax there in question was a direct tax, so would be a tax on ships, according to their tonnage. He suggests that the boundary line between direct and indirect taxes be settled by "a species of arbitration," and that direct taxes be held to be only "capitation or poll taxes, and taxes on lands and buildings, and general assessments, whether on the whole property of individuals or on their whole real or personal estate.

All

The Constitution went into operation on the 4th of March 1789. It is important to look into the legislation of Congress touching the subject since that time. The following summary will suffice for our purpose. We shall refer to the several acts of Congress, to be examined according to their sequence in dates. In all of them the aggregate amount required to be collected was apportioned among the several States.

The act of July 14, 1798, ch. 75, 1 Stat. 53. This act imposed a tax upon real estate and a capitation tax upon slaves.

The act of August 2, 1813, ch. 37, 3 id. 53. By this act the tax was imposed upon real estate and slaves, according to their respective values in money.

The act of January 19, 1815, ch. 21, id. 164. This act imposed the tax upon the same descriptions of property, and in like manner as the preceding act.

The act of February 27, 1815, ch. 60, id. 216, applied to the District of Columbia the provisions of the act of January 19, 1815.

The act of March 5, 1816, ch. 24, id. 255, repealed the two preceding acts, and re-enacted their provisions to enforce the collection of the smaller amount of tax thereby prescribed.

The act of August 5, 1861, ch. 45, 12 id. 294, required the tax to be levied wholly on real estate.

The act of June 7, 1862, ch. 98, id. 422, and the act of February 6, 1863, ch. 21, id. 640, both relate only to the collection, in insurrectionary districts, of the direct tax imposed by the act of August 5, 1861, and need not therefore be more particularly noticed.

It will thus be seen that whenever the government has imposed a tax which it recognized as a direct tax, it has never been applied to any objects but real estate and slaves. The latter application may be accounted for upon two grounds: (1) In some of the States slaves were regarded as real estate (1 Hurd on Slavery, 239; Veasey Bk. v. Fenno, 8 Wall 543); and (2) such an extension of the tax lessened the burden upon the real estate where slavery existed, while the result to the National treasury was the same, whether the slaves were omitted or included. The wishes of the South were therefore allowed to prevail. We are not aware that the question of the validity of such a tax was ever presented for adjudication. Slavery having passed away, it cannot hereafter arise. It does not appear that any tax like the one here in question was ever regarded or treated by Congress as a direct tax. This uniform practical construction of the Constitution touching so important a point, through so long a period, by the legislative and executive departments of the government, though not conclusive, is a consideration of great weight.

There are four adjudications by this court to be considered. They have au important if not a conclusive application to the case in hand. In Hylton v. United States, supra, a tax had been laid upon pleasure carriages. The plaintiff in error insisted that the tax was void, because it was a direct tax and had not been apportioned among the States as required by the Constitution, where such taxes are imposed. The case was argued on both sides by counsel of eminence and ability. It was heard and determined by four judges

Wilson, Patterson, Chase and Iredell. The three first named had been distinguished members of the constitutional convention. Wilson was on the com