Page:Harvard Law Review Volume 9.djvu/229

201 POLLOCK V, FARMERS' LOAN AND TRUST COMPANY. 201 who were to be most heavily taxed ought to have a proportionate influence in the government. The compromise, in embracing the power of direct taxation, consisted not simply in including part of the slaves in the enumeration of population, but in providing that as between State and State such taxation should be propor- tioned to representation." ^ It is then shown by various citations from the writings and speeches of members of the Constitutional Convention that it was expected that most of the revenue would be derived from duties on imports, and that divers of them used language in regard to the phrase " direct taxes " which would include direct taxes on personal property. The debate on the Act of June 5, 1794,^ which placed a tax upon carriages, is referred to^ and reference is also made to Madison's opinion that that act was unconstitutional, and more weight seems to be given to Mr. Madison's opinion than to that of the Supreme Court in Hylton V. United States,^ which held that act to be constitutional, and no allusion is made to the fact that Madison apparently changed his opinion as to the constitutionality of' such acts, since, when Presi- dent, he signed several bills of like import.* The learned Chief Justice, after citing all the acts of Congress which have levied either direct taxes or income taxes, asserts that all of them were passed as war measures.^ He then discusses the four cases of Pacific Insurance Co. v. Soule,^ Veazie Bank v, Fenno,*^ Scholey v. Rew,^ Springer v. United States,^ and holds them to be either not in point or else not to be controlling. He then says that a tax upon the income derived from real estate is a tax upon real estate, because as Lord Coke says, " What is the land but the profits thereof .?" ^^ And therefore that the tax upoi* income derived from rents and real estate is a tax upon land, and that a tax upon land is a " direct tax " within the meaning of the Constitution, and unconstitutional because not apportioned. The logical result of this was extended upon the rehearing to income derived from personal property,^^ because " it would seem [to be] beyond reasonable question that direct taxation, taking the place as it did of requisitions, was purposely restrained to apportion- ment according to representation, in order that the former system 1 157 U. S. 563. 7 8 Wall. 533. « _ r>, , Q -- ITT 11 » I Stat. 373. ^ 23 Wall. 331. » 3 Dall. 171 ; 157 U. S. 569, etseq. ^ 102 U. S. 586, 8 157 U. S. 572 & 573. " 158 U. S. 618. « Wall. 433-
 * 158U. S. 649. ^° Co. Lit. 4 b.