Page:Harvard Law Review Volume 32.djvu/640

604 6o4 HARVARD LAW REVIEW that the law would not need to be invoked in the particular case. Most of us do not commit crimes, yet we nevertheless are subject to the criminal law, and it affords one of the motives for our conduct. So again, what enables any other than the very creditor in proper person to col- lect the debt? The law of the same place. To test it, suppose that New York should turn back the current of legislation and extend to debts the rule still applied to slander, that actio personalis moritur cum persona, and should provide that all debts hereafter contracted in New York and payable there should be extinguished by the death of either party. Leaving constitutional considerations on one side, it is plain that the right of the foreign creditor would be gone. "Power over the person of the debtor confers jurisdiction, we repeat. And this being so we perceive no better reason for denying the right of New York to impose a succession tax on debts owed by its citizens than upon tangible chattels found within the State at the time of the death. The maxim ntohilia sequuntur personam has no more truth in the one case than in the other. When logic and the policy of a State conflict with a fiction due to historical tradition, the fiction must give way. "There is no conflict between our views and the point decided in the case reported under the name of State Tax on Foreign-Held Bonds, 15 Wall. 300. The taxation in that case was on the interest on bonds held out of the State. Bonds and negotiable instruments are more than merely evidences of debt. The debt is inseparable from the paper which declares and constitutes it, by a tradition which comes down from more archaic conditions. Bacon v. Hooker, 177 Mass. 335, 337. Therefore, considering only the place of the property, it was held that bonds held out of the State could not be reached. The decision has been cut down to its precise point by later cases. Savings &" Loan Society v. Multnomah County, 169 U. S. 421, 428; New Orleans v. Stempel, 175 U. S. 309, 319, 320." It is submitted that the ideas here expressed are quite un- tenable; though one hesitates to differ in opinion from so acute, profound, and learned a judge. The opinion appealed from, Matter of Blackstone,^^ allowed the tax upon the authority of Matter of Houdayer,^"^ the case by which was established the New York doc- trine that a bank deposit is taxable as property located at the bank; and the small debt which was not a bank deposit was not considered at all. Mr. Justice Holmes himself expressed the same 8« 171 N. Y. 682, 64 N. E. 1118 (1902). w 150 N. Y. 37, 44 N. E. 718 (1896).