Page:Harvard Law Review Volume 9.djvu/233

205 POLLOCK V. FARMERS' LOAN AND TRUST COMPANY. 205 argument can be deduced against this right from an unsuccessful attempt to collect a tax upon a subject beyond its sovereignty. The question is not whether any burden can be placed upon land or other property by taxes levied by the rule of uniformity, but whether such burden be "direct taxation" or not within the meaning of the Constitution. Indeed, Mr. Justice Brown, in his dissenting opinion, after admitting that " a tax upon the rents or income of real estate is a tax upon the land itself, " — a proposition which, it is submitted, is not true, — goes on to say: "But this does not cover the whole question. To bring the tax within the rule of apportionment, it must not only be a tax upon land, but it must be a direct tax upon land. ... It does not follow . . . that every tax upon land is a direct tax. ... It seems to me that it could hardly be seriously claimed that a tax upon the crops and cattle of the farmer, or the coal and iron of the miner, though levied upon the property while it remained upon the land, was a direct tax upon the land. A tax upon the rent of land in my opinion falls within the same category. .• . . While ... it is a tax upon land, it is a direct tax only upon one of the many profits of land."^ It is evi- dent that the argument of the learned Chief Justice proves too much, for it proves that any tax levied upon any property or upon any proceeds of property is a "direct tax," and therefore cannot be levied by the United States except by the rule of apportionment. The argument based upon Lord Coke's statement to the effect that land is nothing but the profits thereof : ^ that a tax on rents is a "direct tax " upon the land, is, it is submitted with all deference, a complete non sequitur. For here the tax was upon rents already received, and no one can contend that the gift or sale or devise of such would pass the land itself, as a general conveyance or devise of all rents does. Even where there is a limited gift of rents, it does not pass the land,^ and it is well settled that a tax upon rents and a tax upon the land itself are not double taxation.^ Besides, a tax upon the income derived from land or upon its beneficial use is by no means analogous to a grant of the entire beneficial use. The one is a yearly and transient levy, the other is a grant of all interest in the land. » 158 U. S. 692. • Co. Lit. 4 b. ; 157 U. S. 580. ' Fox V. Phelps,! 7 Wend. 393; 157 U. S. 589-590; 157 U. S, 646; 158 U. S. 667; 158 U. S. 692. '
 * 158 U. S. 702.