and specific articles of personal property, and some imposed a tax on occupations, measured by their profits.59 A survey of these proceedings consequently shows the accuracy of the recent statement by Chief-Justice Fuller: "The men who framed and adopted that instrument had just emerged from the struggle for independence whose rallying cry had been that 'taxation and representation go together.' The mother country had taught the colonists, in the contests waged to establish that taxes could not be imposed by the sovereign except as they were granted by the representatives of the realm, that self-taxation constituted the main security against oppression. As Burke declared, in his speech on Conciliation with America, the defenders of the excellence of the English Constitution took infinite pains to inculcate as a fundamental principle, that, in all monarchies, the people must, in effect, themselves, mediately or immediately, possess the power of granting their own money, or no shadow of liberty could subsist.' The principle was, that the consent of those who were expected to pay it was essential to the validity of any tax. "The States were about, for all national purposes embraced in the Constitution, to become one, united under the same sovereign authority, and governed by the same laws. But, as they still retained their jurisdiction over all persons and things within their territorial limits, except where surrendered to the general government or restrained by the Constitution, they were careful to see to it that taxation and representation should go together, so that the sovereignty reserved should not be impaired, and that when Congress, and especially the House of Representatives, where it was specifically provided that all revenue bills must originate, voted a tax upon property, it should be with the consciousness, and under the responsibility that in so doing the tax so voted would proportionately fall upon the immediate constituents of those who imposed it. "More than this, by the Constitution the States not only gave to the Nation the concurrent power to tax persons and property directly, but they surrendered their own power to levy taxes on imports and to regulate commerce. All the thirteen were seaboard States, but they varied in maritime importance, and differences existed between them in popu 59 See Report on Direct Taxes, by Oliver Wolcott, Secretary of the Treasury, Dec. 14, 1796 (Annals of Congress, 1795-1797, pp. 2635-2713. Prof. E. R. A. Seligman on the Income Tax lation, in wealth, in the character of property, and of business interests. Moreover, they looked forward to the coming of new States from the great West into the vast empire of their anticipations. So when the wealthier States as between themselves and their less favored associates, and all as between themselves and those who were to come, gave up for the common good the great sources of revenue derived through commerce, they did so in reliance on the protection afforded by restrictions on the grant of power." "960 "In the light of the struggle in the convention as to whether or not the new Nation should be empowered to levy taxes directly on the individual until after the States had failed to respond to requisitions -a struggle which did not terminate until the amendment to that effect, proposed by Massachusetts and concurred in by South Carolina, New Hampshire, New York, and Rhode Island, had been rejected — it would seem beyond reasonable question that direct taxation, taking the place as it did of requisitions, was purposely restrained to apportionment according to representation, in order that the former system as to ratio," which had been proposed by Congress as an amendment to the Articles of Confederation, and ratified by eleven States, "might be retained while the mode of collection was changed." "' 61 "The reasons for the clauses of the Constitution in respect of direct taxation are not far to seek. The States respectively possessed plenary powers of taxation. They could tax the property of their citizens in such manner and to such extent as they saw fit; they had unrestricted powers to impose duties or impost, on imports from abroad and excises on manufactures, consumable commodities, or otherwise. They gave up the great sources of revenue derived from commerce; they retained the concurrent power of levying excises and duties if covering anything other than excises; but in respect of them the range of taxation was narrowed by the power granted over interstate commerce, and by the danger of being put at disadvantage in dealing with excises on manufactures. They retained the power of direct taxation, and to that they looked as their chief resource; but even in respect of that, they granted the concurrent power, and if the tax were placed by both governments on the same subject, the claim of the United States had preference. Therefore, they did not grant the power of direct taxation, without regard to their own condition and resources as States; but they granted the power of apportioned direct taxation, a power just as efficacious to serve the needs of the general government, but 61 Ibid., 601, 619-620. 60 Pollock v. Farmers' Loan and Trust Co., 158 U. S., 429, 556-557. securing to the States the opportunity to pay the amount apportioned, and to recoup from their own citizens in the most feasible way, and in harmony with their systems of local self-government. If, in the changes of wealth and population in particular States, apportionment produced inequality, it was an inequality stipulated for, just as the equal representation of the States, however small, in the Senate, was stipulated for. The Constitution ordains affirmatively that each State shall have two members of that body, and negatively that no State shall by amendment be deprived of its equal suffrage in the Senate without its consent. The Constitution ordains affirmatively that representatives and direct taxes shall be apportioned among the several States according to numbers, and negatively that no direct tax shall be laid unless in proportion to the enumeration. "The founders anticipated that the expenditures of the States, their counties, cities and towns, would chiefly be met by direct taxation on accumulated property, while they expected that those of the Federal government would be for the most part met by indirect taxes. And in order that the power of direct taxation by the general government should not be exercised except on necessity; and, when the necessity arose, should be so exercised as to leave the States at liberty to discharge their respective obligations, and should not be so exercised, unfairly and discriminatingly, as to particular States or otherwise, by a mere majority vote, possibly of those whose constituents were intentionally not subjected to any part of the burden, the qualified grant was made." 62 § 65. Manner of Apportionment. The first apportionment was made by the Constitution itself and was assumed to be upon substantially the same basis as it fixed for all future apportionments, with an extra allowance to Georgia on account of the rapid increase of her population.1 The apportionment of direct taxation is easy. It is made by taking the aggregate of the population in all the States according to the constitutional rule, ascertaining the proportion of this population in each State to that of the whole, and then dividing the gross amount of the tax by the ratios thus obtained. Since a sum of money is capable of division down to a fraction of a cent which is too small for consideration, there is no difficulty in the process. A man, however, cannot be subdivided. Conse 62 Pollock v. Farmers' Loan and Trust Co., 158 U. S., 601, 620-621. § 65. 1 Madison Papers, Elliot's Debates, 2d ed., vol. v, p. 300. quently, any scheme of apportionment, after the determination of the amount of population which shall be entitled to one representative, creates a difficulty by the existence in almost every State, of several thousands of persons, who constitute a fraction of that number, and for whose representation provision should be made. Different methods of providing for these fractions have been considered and adopted. The first apportionment bill, which was introduced in the House of Representatives in 1790, gave one representative for every 30,000 inhabitants, and left the remaining fractions in the several States unrepresented. The bill passed the House in this form and was amended in the Senate by allowing additional representatives to the States having the largest fractions. The House finally concurred. The history of the discussion is thus stated by Chief-Justice Marshall: On "This bill as originally introduced into the house of representatives, gave to each state one member for every thirty thousand persons. a motion to strike out the number thirty thousand, the debate turned chiefly on the policy and advantage of a more or less numerous house of representatives; but with the general arguments suggested by the subject, were interspersed strong and pointed allusions to the measures of the preceding Congress, which indicated much more serious hostility to the administration than had hitherto been expressed." 2 "After a long and animated discussion, the amendment was lost; as were also other amendments which were severally proposed, for inserting between the words thirty,' and 'thousand,' the words five, four, and three; and the bill passed in its original form. In the senate, it was amended by changing the ratio so as to give one representative for every thirtythree thousand persons in each state; but this amendment was disagreed to by the house of representatives; and each house adhering to its opinion, the bill fell. The argument which operated in the senate is understood to have been, the great amount, and the inequality of unrepresented fractions, which were the result of the ratio originally proposed; a circumstance which pressed with peculiar weight on the small states, where the fraction could not be distributed among several members. A bill was again introduced into the house of representatives under a different title and in a new form, but without any change in its substantial provisions. After a debate in which the inequality and injustice of the fractions produced by the ratio it adopted was strongly insisted on, it passed that house. In the senate, it was again amended, 2 Marshall's Life of Washington, vol. v, p. 319. 6 not by reducing, but by enlarging the number of representatives. The Constitution of the United States declares that representatives and direct taxes shall be apportioned among the several states which may be included within this union according to their respective numbers; ' and that the number of representatives shall not exceed one for every thirty thousand, but each state shall have at least one representative.' Construing the constitution to authorize a process by which the whole number of representatives should be ascertained on the whole population of the United States, and afterwards apportioned among the several states according to their respective numbers,' the senate applied the number thirty thousand as a divisor to the total population, and taking the quotient which was one hundred and twenty, as the number of representatives given by the ratio which had been adopted in the house where the bill had originated, they apportioned that number among the several states by that ratio, until as many representatives as it would give were allotted to each. The residuary members were then distributed among the states having the highest fractions. Without professing the principle on which this apportionment was made, the amendment of the senate merely allotted to the states respectively, the number of members which the process just mentioned would give. The result was a more equitable apportionment of representatives to population, and a still more exact accordance, than was found in the original bill, with the prevailing sentiment, which, both within and without doors, seemed to require that the popular branch of the legislature should consist of as many members as the fundamental laws of the government would admit. If the rule of construing that instrument was correct, the amendment removed objections which were certainly well founded, and was not easily assailable by the advocates for a numerous representative body. But the rule was novel, and overturned opinions which had been generally assumed, and were supposed to be settled. In one branch of the legislature it had already been rejected; and in the other, the majority in its favour was only one. In the house of representatives, the amendment was supported with considerable ingenuity. After an earnest debate, however, it was disagreed to, and a conference took place without producing an accommodation among the members composing the committee. But finally, the house of representatives receded from their disagreement; and, by a majority of two voices, the bill passed as amended in the senate." The division in Congress on the subject was geographical. The Southern States voted against it, and the Northern in its favor. Marshall's Life of Washington, 4 Story on the Constitution, 5th ed., |