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counsel, that the Constitution may not be violated from the carelessness or oversight of counsel in any particular. (See O'Neil v. Vermont, 144 U. S. 359.) Besides, there is a duty which this court owes to the one hundred otherUnited States judges who have small salaries, and who, having their compensation reduced by the tax, may be seriously affected by the law.

retaining in the treasury a portion of the compensation of the judges as unconstitutional and void.”

This letter of Chief Justice Taney was addressed to Mr. Chase, then secretary of the treasury, and afterwards the successor of Mr. Taney as chief justice. It was dated February 16, 1863, but as no notice was taken of it, on the 10th of March following, at the request of the chief justice, the court ordered that his letter to the secretary of the treasury be entered on the records of the court, and it was so entered. And in the Memoir of the chief justice it is stated that the letter was, by this order,

less than in peace, Chief Justice Taney strove to protect the Constitution from violation.

The Constitution of the United States provides in the first section of article II that: "The judicial power of the United States shall be vested in one Supreme Court and in such inferior courts as the Congress may from time to time ordain and estab-preserved "to testify to future ages that in war, no lish. The judges, both of the Supreme and inferior courts, shall hold their offices during good behavior, and shall at stated times receive for their services a compensation, which shall not be diminished during their continuance in office." The act of Congress under discussion imposes, as said, a tax on $6,000 of this compensation, and therefore diminishes each year the compensation provided for every justice. How a similar law of Congress was regarded thirty years ago may be shown by the following incident, in which the justices of the court were assessed at three per cent upon their salaries. Against this Chief Justice Taney protested in a letter to Mr. Chase, then secretary of the treasury, appealing to the above article in the Constitution, and adding: "If it [his salary] can be diminished to that extent by the means of a tax, it may, in the same way, be reduced from time to time at the pleasure of the Legislature." He explained in his letter the object of the constitutional inhibition, thus:

Subsequently, in 1869, and during the administration of President Grant, when Mr. Boutwell was secretary of the treasury, and Mr. Hoar, of Massachusetts, was attorney-general, there were in several of the statutes of the United States, for the assessment and collection of internal revenue, provisions for taxing the salaries of all civil officers of the United States, which included, in their literal application, the salaries of the President and the judges of the United States. The question arose whether the law which imposed such a tax upon them was constitutional. The opinion of the attorney-general thereon was requested by the secretary of the treasury. The attorney-general, in reply, gave an elaborate opinion advising the secretary of the treasury that no income tax could be lawfully assessed and collected upon the salaries of those officers who were in office at the time the statute imposing the tax was passed, holding on this sub

“The judiciary is one of the three great depart-ject the views expressed by Chief Justice Taney. ments of the government created and established by the Constitution. Its duties and powers are spe

cifically set forth, and are of a character that require it to be perfectly independent of the other departments. And in order to place it beyond the reach, and above even the suspicion, of any such influence, the power to reduce their compensation is expressly withheld from Congress and excepted from their powers of legislation.

"Language could not be more plain than that used in the Constitution. It is, moreover, one of its most important and essential provisions. For the articles which limit the powers of the legislative and executive branches of the government, and those which provide safeguards for the protection of the citizen in his person and property, would be of little value without a judiciary to uphold and maintain them which was free from every influence, direct or indirect, that might by possibility, jn times of political excitement, warp their judgment. "Upon these grounds I regard an act of Congress

His opinion is published in volume XIII of the
Opinions of the Attoney-General, at page 161.

I

am informed that it has been followed ever since without question by the department supervising or directing the collection of the public revenue.

Here I close my opinion. I could not say less in the very foundation of the government. If the proview of questions of such gravity that go down to

visions of the Constitution can be set aside by an act of Congress, where is the course of usurpation to end? The present assault upon capital is but the beginning. It will be but the stepping-stone to others, larger and more sweeping, till our political contests will become a war of the poor against the rich; a war constantly growing in intensity and bitterness. "If the court sanctions the power of discriminating taxation, and nullifies the uniformity mandate of the Constitution," as said by one who has been all his life a student of our institutions, "it will mark the hour when the sure decadence of our present government will commence." If the purely arbitrary limitation of $4,000 in the present

law can be sustained, none having less than that amount of property being assessed or taxed for the support of the government, the limitation of future Congresses may be fixed at a much larger sun, at five, or ten, or twenty thousand dollars, parties possessing that amount alone being bound to bear the burdens of government; or the limitation may be

designated at such an amount as a board of "walking delegates " may deem necessary. There is no safety in allowing the limitation to be adjusted except in strict compliance with the mandates of the Constitution which require its taxation, if imposed by direct taxes, to be apportioned among the States according to their representation, and if imposed by indirect taxes, to be uniform in operation and, so far as practicable, in proportion to their property, equal upon all citizens. Unless the rule of the Constitution governs, a majority may.

fix the limitation at such rate as will not include any of their own number.

I am of opinion that the whole law of 1894 should be declared void and without any binding

force that part which relates to the tax on the rents, profits or income from real estate, that is, so much as constitutes part of the direct tax, because not imposed by the rule of apportionment according to the representation of the States, as prescribed by the Constitution-and that part which imposes a tax upon the bonds and securities of the several States, and upon the bonds and securities of their municipal bodies, and upon the salaries of judges of the courts of the United States, as being beyond the power of Congress; and that part which lays duties, imposts and excises as void in not providing for the uniformity required by the Constitution in such cases.

Abstracts of Recent Decisions.

ADVERSE POSSESSION-RAILROAD COMPANIES. Part of a city lot was fenced in by one claiming title to the whole, and the rest of it was covered by a railroad embankment, though the tracks only occupied a small part of the embankment. Held, that the railroad company had actual possession of all said lot outside the fence. (St. Louis, A. & T. H. R. Co. v. Nugent [Ill.], 39 N. E. Rep. 263.)

CHATTEL MORTGAGE.-A contract for the sale of

personal property, which provides that title shall remain in the vendor until the price is paid, and that, in case of default in and of the several payments provided for, all payments shall, at the option of the vendor, become due, and the property may be retaken by him, constitutes a mortgage for the payment of the price. (Perkins v. Loan & Exchange Bank of South Carolina [So. Car.], 20 S. E. Rep. 759.)

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CONTRACT-CONSTRUCTION.-Where the terms of a verbal contract, which was admittedly made, are disputed by the contracting parties, and the evidence is evenly balanced, the terms that are most just should prevail. (Smiley v. Gallagher [Penn.], 30 Atl. Rep. 713.)

CRIMINAL LAW-EVIDENCE-OTHER CRIMES.-If

circumstances attending the commission of an offense convey to the accused knowledge necessary to render his subsequent conduct criminal, the fact that an indictment is pending for the earlier offense will not prevent the circumstances from being shown on his trial for the subsequent conduct. (Bodee v. State [N. J.], 30 Atl. Rep. 681.)

CRIMINAL TRIAL.-A defendant, represented by counsel, who refuses to be sworn, cannot make a statement to the jury giving his side of the case. (Commonwealth v. Burrough [Mass.], 39 N. E. Rep. 184.)

DEED EASEMENT IN STREET.

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FEDERAL COURTS JURISDICTION-STAte judge. A Circuit Court of the United States has no authority to review the judgments of the State courts, and hold their judges responsible for failure to discharge their judicial duties. (Siddall v. Bregy (U. S. C. C. [Penn.], 64 Fed. Rep. 610.)

HABEAS CORPUS-ORDER AT CHAMBERS.—Ân order of a State judge, at chambers, remanding a prisoner in a habeas corpus proceeding is not an order of a "court," within Rev. St., § 707, allowing a writ of error from the Supreme Court of the United States only to the final judgment of the highest

court of the State in which a decision in the suit can be had. (McKnight v. James [U. S. S. C.], 15 S. C. Rep. 248.)

LIBEL-LANGUAGE.- -An article in a newspaper, consisting of a letter in which it is said of and concerning the plaintiff: "You cannot get P. down any lower than he is; he is low enough; you can't get him down any lower; you can't spoil a rotten egg"

is grossly libelous per se, even without inuendoes to explain the meaning of the language used, and no allegation of special damage is necessary. (Pfitzinger v. Dubs [U. S. C. C. of App.], 64 Fed. Rep. 696.)

The Albany Law Journal.

ALBANY, MAY 4, 1895.

Current Topics.

[All communications intended for the Editor should be addressed simply to the Editor of THE ALBANY LAW JOURNAL.

All letters relating to advertisements, subscriptions, or other business matters, should be addressed to THE ALBANY LAW JOURNAL COMPANY.]

WE

E publish in the LAW JOURNAL of this week the dissenting opinion of Mr. Justice Harlan, and in this connection it is most proper to discuss the opinion of Mr. Justice White, in which Justice Harlan practically concurs. There seems to be no good reason why any judge should support such an outrageous and unfortunate statute, on the grounds that what a court has formerly decided must forever stand as true. It is perfectly in accord with and parallel to the thought that if the former judges of the court were incapable of construing the law, their successors in office should also simulate their mental incapacity. There is just about as much sense in saying that when a body has formerly decided a matter in one way, that they are right, and must never be controverted, as to assert that because the earth was once considered flat, that subsequent earth was once considered flat, that subsequent theorists should respect the memory of those who were unfortunate enough to be limited in their knowledge, and declare that this world of ours is not round. One quotation from the opinion would cover the allegations which are made on this subject, and is as follows:

"Under the income tax laws which prevailed in the past for many years, and which covered every conceivable source of income, rentals from real estate, and everything else, vast sums were collected from the people of the United States The decision here rendered announces that those sums were wrongfully taken, and thereby, it seems to me, creates a claim in equity and good conscience against the government for an enormous amount of money..

"Thus, from the change of view by this court, it happens that an act of Congress, passed for the purpose of raising revenue, in strict conformity with the practice of the government from the earliest time, and in accordance with the oft-repeated decisions of this VOL. 51 No. 18.

court, furnishes the occasion of creating a claim against the government for hundreds of millions of dollars; I say, 'creating a claim,' because if the government be in good conscience bound to refund that which has been taken from the citizen in violation of the Constitution, although the technical right may have disappeared by lapse of time, or because the decisions of this court have misled the citizen, to his grievous injury, the equity endures, and will present itself to the conscience of the government. This consequence shows how necessary it is that the court should not overthrow its past decisions."

The decisions of the judges above referred to simply support the income tax upon the theory that it is necessary to preserve consistency and continuity of Federal decisions. That is to say, the doctrine of stare decisis is always to prevail, and to be superior to the truth; and solely upon the grounds that the Supreme Court

of the United States has made such a declaration in times past. It is difficult for us to see how such opinions can receive the careful consideration and respect of the members of the bar, or how such illogical conclusions can influence the masses of society. It is hardly necessary to say that the doctrine of stare decisis has been repeatedly rejected by the courts of Federal and State jurisdiction, and by the common assent of the legal fraternity, when the light of clearer reasoning threw the proper in

tention of the framers of a statute on the law; while the judicial history of this country, and in fact of all countries where principles of law control, show that judges are mortals, and as such must err at times; that they are not infallible, and may be mistaken; that they are weak, and may be influenced by personal and local interests. Under these circumstances, there appears to be no weight of authority, in fact there is none, which to-day gives the doctrine of stare decisis any peculiar weight, when it is clearly shown that the former determinations of the court were absolutely wrong. On this question of "direct taxes it is obviously true that the principle of stare decisis should not prevail, because in the " carriage case," in the year 1796, there was an assertion that direct taxes simply and exclusively meant a land tax, while the constitutional provision was that no capitation or other direct tax should be laid," etc.,

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addition, it is easy to perceive that the framers of the Constitution adopted such words to express their intention as were used in common parlance throughout the country to express a clear and simple thought. In such a sense there can be no doubt but that direct taxes were intended to include more than capitation taxes and taxes upon land, and that the framers of the Constitution never desired to have the principal of stare decisis prevent citizens of this country from acquiring their rightful interests under the protection of the Constitution.

demonstrating that more than one direct taxing, and were not given any peculiar sense. In was in the minds of the framers of the Constitution when they drew up the document which has been so long the peculiar and particular protection of the American citizens from the invention of such socialistic statutes as the income tax. In the face of the quotations which were made by the learned counsel against the constitutionality of the act, showing that in the Philadelphia convention direct taxes were not included in the capitation tax and the tax on land, how lacking in all soundness of reasoning is it to say that the intention of the delegates to the convention was different from what is clearly proven, simply because of a subsequent determination of the court. Clarence A. Seward, Esq., made an exhaustive examination and argument of the State statutes and of the legislation of the several States during the interval between the Declaration of Independence and the adoption of our Federal organic law. The result of this is to show that, prior to the adoption of the Constitution, the States of Massachusetts, Pennsylvania. Connecticut, Delaware, Vermont, South Carolina, New Jersey and Virginia assessed their citizens upon the profits of their profession, trade or employment, and collected the taxes for the joint benefit of the State and of the general government. Mr. Seward's argument is not based upon the former interpretation by the Supreme Court of the United States of what direct taxes were, but he goes to the root of the question, and takes the very words of the framers of this fundamental law. Mr. Seward shows that in the re

ports of the conventions, as given by Elliott, that the people, subsequent to the Philadelphia convention, adopted the Constitutions at State conventions, and that their intent was not to limit the phrase "direct taxes to a tax upon land only. It is proved beyond doubt that the delegates to the State conventions understood that by the direct taxes which the Constitution gave Congress the power to levy and collect was not meant a tax on land only, but all such taxes as the States were then levying and collecting under the name of direct taxes, exclusive of duties, imposts, etc. Mr. Seward also most clearly brings out the point that when the words "direct taxes" were used in the Constitution, they were put there with their usual mean

If legislators were paid what the majority of the intelligent people think their services are worth in framing and enacting good laws, it is barely possible that they would receive very small compensation, and might be induced to allow the statutes to remain unamended. long enough to gives lawyers a chance to become better, acquainted with the law of the State. The annual rush of bills in the New York State Legislature has been greater this year than ever before, and already nearly four hundred new laws have been enacted. In relation to the compensation of legislators, the Law Times publishes a letter giving the history of the pay of members of Parliament, which is worthy of special attention at this time, as a motion has recently. passed the House of Commons providing for the payment of members. The letter is:

Hallam, in the third volume of his Middle Ages, pp. 170-1, says: "The wages of the knights were 4s. a day levied on all freeholders, or at least on all holding, by knight service, within the county. Those of the burgesses were half that sum; but even this pittance was raised with reluctance and difficulty from miserable burghers, little solicitous about political franchises." In a note of great interest to this passage, the historian adds: “The latest entries of writs for expenses on the close rolls are of 2 Hen. 5; but they may be proved to have been issued much longer, and Prynne traces them to the end of Henry VIII's reign, p. 495, Fourth Register. Without the formality of this writ a very few instances of towns remunerating their burgesses for attendance in Parliament are known to have occurred in later times. An

drew Marvell is commonly said to have been notwithstanding the writs were not entered the last who received this honorable salary. A upon the Clause Rolls, nor extant at this day modern book asserts that wages were paid in upon record, that I can yet discover. (2) That some Cornish boroughs as late as the eighteenth their expenses and wages was a just, ancient and century. (Lyson's Cornwall, Preface, p. 32.) legal charge, debt, duty, wherewith all counties But the passage quoted in proof of this is not then were, and ought of common right to be precise enough to support so unlikely a fact. charged in perpetuity, when and as often as (Willis's Notitia Parliamentaria; and Prynne's Parliaments have been held or shall be, and fourth part of a Brief Register, pp. 53 and 495 knights of shires elected and sent unto them by seq.)" the commonalties of counties. (3) That no persons, liberties or lands anciently and legally chargeable to contribute to the expenses and wages of knights can be exempted from this publike charge, duty in perpetuity, but by a special act of Parliament (cf. 34 and 35 Hen. 8, ch. 24), and by mutual consent or agreement of the inhabitants of the whole county chargeable therewith, and that upon a satisfactory

Prynne, in the fourth part of a Brief Register (p. 53), gives the earliest known specimen of the writ De levandis burgensium expensis, bearing date 16 Ed. 2. The marginal note is “Claus. 16 Ed. 2, m. 19, dorso de Expensis

Militum." The writ runs: "Rex Vic. Ebor

Salutem. Præcipimus tibi quod de communitate Com. tui tam infra libertates quam extra habere fac dilectis et fidelibus nostri Gregorie de Thorn-compensation or valuable lasting satisfaction ton et Hen. de Malton Militibus Com. illius nuper de mandato nostro pro Communitate Com. prædicti nS B Eborum ad Nos venientibus ad tractand ibidem super diversis et arduis negotiis. Nos et statum Regni nostri tangentibus, Novem Marcos pro expensis suis, idibem morando par quindecem dies, uterque eorum capiante per diem quattuor solidos. T. R. apud Ebor 29 die Novembris." Prynne, in a note, adds: "That the Parliment being held at Yorke, the knights of Yorkshire had no expenses allowed them so much as for one day in going and coming to the Parliament, being held in their own county, as all knights, citizens, burgesses had, coming from other counties, but only for the days they sat, and sometimes sittings in Parliament being but fifteen days, and no more, when, no doubt, their privilege from arrest and actions ended, as well as their several expenses." Prynne rePrynne relies for the legal authority as to the right of members to wages principally on the petition of the Commons with the answer of the Crown (Rot. Parlt. Hen. 6, num. 46. Countee de Cantobrig--Fourth Register, p. 517), and also on the statute of 34 and 35 Hen. 8, ch. 24. Prynne summarizes the inference to be collected from the petition of the Commons in Hen. 6 in the following words: "By this memorable petition and answer it is apparent: (1) That the wages and expenses of knights of the shires were then duly levied by the knights' writs, and payd to the knights of Cambridge and other counties,

payd by the parties exempted equivalent to the summs wherewith they were chargeable. (4) That these expenses or wages ought to be equally assessed and levyed on the lands tenements. goods and chattels, or those who by law or custom are contributors towards them, and not one part of the county or liberty charged with the whole, but only with its due proportion. (5) That there were many and longthe county of Cambridge and Isle of Ely conlasting controversies between the inhabitants of cerning what summes and proportions the islanders should pay toward the expenses of the knights elected for the county, very prejudicial to the knights and contributors which were perpetually decided and settled by this memorable act, and the statute of 34 and 35 Hen. 8, ch. 24." The act of Hen. 8, to which Prynne attributed so much importance, and which, it is submitted, was the ground of Lord Nottingham's famous decisions in Thomas Kings's case, mentioned below, was intituled, "A Bill for the Assurance of certain land to John Hinde, Serjeant-at-Law, and to his heirs, paying therefore yearly ten pounds towards the charges of the knights of the shire of Cambridge for the time being. The sheriff and two knights of this Parliament for the county of Cambridge, incorporated by the name of the Wardens of the Wages, who shall have the x. li. rent payable out of the shire manor. The remedy to recover the rent of x. li. if it be behind. A remedy for the rent if the land comes

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