If it is proposed to tax any specific article by the rule of apportionment, and it would evidently create great inequality and injustice, it is unreasonable to say that the constitution intended such tax should be laid by that rule.

It appears to me that a tax on carriages cannot be laid by the rule of apportionment, without very great inequality and injustice. For example; suppose two states, equal in census, to pay eighty thousand dollars each, by a tax on carriages, of eight dollars on every carriage; and in one state there are one hundred carriages, and in the other one thousand. The owners of carriages in one state would pay ten times the tax of owners in the other. A., in one state, would pay for his carriage eight dollars; but B., in the other state, would pay for his carriage eighty dollars.

It was argued that a tax on carriages was a direct tax, and might be laid according to the rule of apportionment, and, as I understood, in this manner: Congress, after determining on the gross sum to be raised, was to apportion it according to the census, and then lay it in one state on carriages, in another on horses, in a third on tobacco, in a fourth on rice, and so on. I admit that this mode might be adopted, to raise a certain sum in each state according to the census, but it would not be a tax on carriages, but on a number of specific articles; and it seems to me that it would be liable to the same objection of abuse and oppression as a selection of any one article in all the states.

I think an annual tax on carriages for the conveyance of persons may be considered as within the power granted to congress to lay duties. The term "duty" is the most comprehensive next to the generical term "tax;" and, practically, in Great Britain, whence we take our general ideas of taxes, duties, imposts, excises, customs, &c., embraces taxes on stamps, tolls for passage, &c., &c., and is not confined to taxes on importation only.

It seems to me that a tax on expense is an indirect tax; and I think an annual tax on a carriage for the conveyance of per

sons is of that kind; because a carriage is a consumable commodity; and such annual tax on it is on the expense of the

owner.

I am inclined to think, but of this I do not give a judicial opinion, that the direct taxes contemplated by the constitution are only two, to wit, a capitation or poll tax, simply, without! regard to property, profession, or any other circumstance; and a tax on land. I doubt whether a tax, by a general assessment of personal property within the United States, is included within the term "direct tax."

As I do not think the tax on carriages is a direct tax, it is unnecessary, at this time, for me to determine whether this court constitutionally possesses the power to declare an act of congress void, on the ground of its being made contrary to, and in violation of, the constitution; but if the court have such power, I am free to declare that I will never exercise it, but in a very clear case.

I am for affirming the judgment of the circuit court.

PATERSON, J.-By the second section of the first article of the constitution of the United States it is ordained that representatives and direct taxes shall be apportioned among the states according to their respective numbers, which shall be determined by adding to the whole number of free persons, including those bound to service for a term of years, and including Indians not taxed, three-fifths of all other persons.

The eighth section of the said article declares that congress shall have power to lay and collect taxes, duties, imposts, and excises; but all duties, imposts, and excises shall be uniform throughout the United States.

The ninth section of the same article provides that no capitation or other direct tax shall be laid, unless in proportion to the census or enumeration before directed to be taken.

Congress passed a law, on the 5th of June, 1794, entitled, "An Act laying Duties upon Carriages for the Conveyance of Persons."

Daniel Lawrence Hylton, on the 5th of June, 1794, and therefrom to the last day of September next following, owned, possessed, and kept one hundred and twenty-five chariots for the conveyance of persons, but exclusively for his own separate use, and not to let out to hire, or for the conveyance of persons for hire.

The question is, whether a tax upon carriages be a direct tax? If it be a direct tax, it is unconstitutional, because it has been laid pursuant to the rule of uniformity, and not to the rule of apportionment. In behalf of the plaintiff in error it has been urged that a tax on carriages does not come within the description of a duty, impost, or excise, and, therefore, is a direct tax. It has, on the other hand, been contended, that, as a tax on carriages is not a direct tax, it must fall within one of the classifications just enumerated, and, particularly, must be a duty or excise. The argument on both sides turns in a circle; it is not a duty, impost, or excise, and therefore must be a direct tax; it is not a direct tax, and therefore must be a duty or excise. What is the natural and common, or technical and appropriate meaning of the words, "duty," and "excise," it is not easy to ascertain. They present no clear and precise idea to the mind. Different persons will annex different significations to the terms. It was, however, obviously the intention of the framers of the constitution that congress should possess full power over every species of taxable property, except exports. The term "taxes" is generical, and was made use of to vest in congress plenary authority in all cases of taxation. The general division of taxes is into direct and indirect. Although the latter term is not to be found in the constitution, yet the former necessarily implies it. Indirect stands opposed to direct. There may, perhaps, be an indirect tax on a particular article that cannot be comprehended within the description of duties, or imposts, or excises; in such case it will be comprised under the general denomination of "taxes." For the term "tax is the genus, and includes,

1 Direct taxes.

2.. Duties, imposts, and excises.

3. All other classes of an indirect kind, and not within any of the classifications enumerated under the preceding heads.

The question occurs, How is such tax to be laid? uniformly, or apportionately? The rule of uniformity will apply, because it is an indirect tax, and direct taxes only are to be apportioned. What are direct taxes within the meaning of the constitution? The constitution declares that a capitation tax is a direct tax; and, both in theory and practice, a tax on land is deemed to be a direct tax. In this way, the terms "direct taxes," and "capitation and other direct tax," are satisfied. It is not necessary to determine whether a tax on the product of land be a direct or indirect tax. Perhaps the immediate product of land, in its original and crude state, ought to be considered as the land itself; it makes part of it; or else the provision made against taxing exports would be easily eluded. Land, independently of its produce, is of no value. When the produce is converted into a manufacture, it assumes a new shape; its nature is altered; its original state is changed; it becomes quite another subject, and will be differently considered. Whether direct taxes, in the sense of the constitution, comprehend any other tax than a capitation tax, and tax on land, is a questionable point. If congress, for instance, should tax, in the aggregate or mass, things that generally pervade all the states in the union, then, perhaps, the rule of apportionment would be the most proper, especially if an assessment was to intervene. This appears by the practice of some of the states to have been considered as a direct tax. Whether it be so under the constitution of the United States is a matter of some difficulty; but as it is not before the court, it would be improper to give any decisive opinion upon it. I never entertained a doubt that the principal, I will not say the only, objects that the framers of the constitution contemplated, as falling within the rule of apportionment, were a capitation tax and a tax on land. Local considerations, and the particular circumstances and relative situation

of the states, naturally lead to this view of the subject. The provision was made in favor of the southern states. They possessed a large number of slaves; they had extensive tracts of territory, thinly settled, and not very productive. A majority of the states had but few slaves, and several of them a limited territory, well settled, and in a high state of cultivation. The southern states, if no provision had been introduced in the constitution, would have been wholly at the mercy of the other states. Congress in such case might tax slaves at discretion or arbitrarily, and land in every part of the union after the same rate or measure: so much a head in the first instance, and so much an acre in the second. To guard them against imposition in these particulars was the reason of introducing the clause in the constitution which directs that representatives and direct taxes shall be apportioned among the states according to their respective numbers.

On the part of the plaintiff in error it has been contended that the rule of apportionment is to be favored rather than the rule of uniformity; and, of course, that the instrument is to receive such a construction as will extend the former and restrict the latter. I am not of that opinion. The constitution has been considered as an accommodating system; it was the effect of mutual sacrifices and concession; it was the work of compromise. The rule of apportionment is of this nature; it is radically wrong; it cannot be supported by any solid reasoning. Why should slaves, who are a species of property, be represented, more than any other property? The rule, therefore, ought not to be extended by construction.

Again, numbers do not afford a just estimate or rule of wealth. It is, indeed, a very uncertain and incompetent sign of opulence. There is another reason against the extension of the principle laid down in the constitution.

The counsel on the part of the plaintiff in error have further urged that an equal participation of the expense or burden by the several states in the union was the primary object which the framers of the constitution had in view; and that this ob