and eighty cents. The share of Connecticut being seventy dollars, each carriage would pay thirty-five dollars. If any state had no carriages, there could be no apportionment at all. This mode is too manifestly absurd to be supported, and has not even been attempted in debate. But two expedients have been proposed, of a very extraordinary nature, to evade the difficulty. 1. To raise the money, a tax on carriages would produce, not by laying a tax on each carriage uniformly, but by selecting different articles in different states, so that the amount paid in each state may be equal to the sum due upon a principle of apportionment. One state might pay by a tax on carriages, another by a tax on slaves, &c. I should have thought this merely an exercise of ingenuity, if it had not been pressed with some earnestness; and as this was done by gentlemen of high respectability in their profession, it deserves a serious answer, though it is very difficult to give such a one. 1. This is not an apportionment of a tax on carriages, but of the money a tax on carriages might be supposed to produce, which is quite a different thing. 2. It admits that congress cannot lay a uniform tax on all carriages in the union, in any mode, but that they may on carriages in one or more states. They may, therefore, lay a tax on carriages in fourteen states, but not in the fifteenth. 3. If congress, according to this new decree, may select carriages as a proper object in one or more states, but omit them in others, I presume they may omit them in all, and select other articles. Suppose, then, a tax on carriages would produce one hundred thousand dollars, and a tax on horses a like sum, and a hundred thousand dollars were to be apportioned according to that mode. Gentlemen might amuse themselves with calling this a tax on carriages, or a tax on horses, while not a single carriage, nor a single horse, was taxed throughout the union. 4. Such an arbitrary method of taxing different states differently is a suggestion altogether new, and would lead, if practised, to such dangerous consequences that it will require very powerful arguments to show that that method of taxing would be in any manner compatible with the constitution, with which at present I deem it utterly irreconcilable, it being altogether destructive of the notion of a common interest, upon which the very principles of the constitution are founded, so far as the condition of the United States will admit. The second expedient proposed was that of taxing carriages, among other things, in a general assessment. This amounts to saying that congress may lay a tax on carriages, but that they may not do it unless they blend it with other subjects of taxation. For this no reason or authority has been given, and, in addition to other suggestions offered by the counsel on that side, affords an irrefragable proof, that, when positions plainly so untenable are offered to counteract the principle contended for by the opposite counsel, the principle itself is a right one; for no one can doubt, that, if better reasons could have been offered, they would not have escaped the sagacity and learning of the gentlemen who offered them. There is no necessity or propriety in determining what is, or is not, a direct, or indirect, tax in all cases. Some difficulties may occur which we do not at present foresee. Perhaps a direct tax, in the sense of the constitution, can mean nothing but a tax on something inseparably annexed to the soil; something capable of apportionment under all such circumstances. A land or a poll tax may be considered of this description. The latter is to be considered so particularly, under the present constitution, on account of the slaves in the southern states, who give a ratio in the representation in the proportion of three to five. Either of these is capable of apportionment. In regard to other articles there may possibly be considerable doubt. It is sufficient, on the present occasion, for the court to be satisfied that this is not a direct tax contemplated by the constitution, in order to affirm the present judgment; since, if it cannot be apportioned, it must necessarily be uniform. I am clearly of opinion this is not a direct tax, in the sense of the constitution, and, therefore, that the judgment ought to be affirmed. Judgment affirmed. 3 Dal. 183. CALDER AND WIFE v. BULL AND WIFE. AUGUST TERM, 1798. [3 Dallas's Reports, 386-401.] As all the important facts in this case are stated in the opening of Judge Chase's opinion, no abstract is needed. The opinions of the court were given seriatim, as follows: CHASE, J.-The decision of one question determines, in my opinion, the present dispute. I shall, therefore, state from the record no more of the case than I think necessary for the consideration of that question only. The legislature of Connecticut, on the second Thursday of May, 1795, passed a resolution, or law, which, for the reasons assigned, set aside a decree of the court of probate for Hartford, on the 21st of March, 1793, which decree disapproved of the will of Normand Morrison (the grandson) made the 21st of August, 1779, and refused to record the said will; and granted a new hearing by the said court of probate, with liberty of appeal therefrom, in six months. A new hearing was had, in virtue of this resolution, or law, before the said court of probate, who, on the 27th of July, 1795, approved the said will, and ordered it to be recorded. At August, 1795, appeal was then had to the superior court at Hartford, who, at February term, 1796, affirmed the decree of the court of probate. Appeal was had to the supreme court of errors of Connecticut, who, in June, 1796, adjudged that there were no errors. More than eighteen months elapsed from the decree of the court of probate, (on the 1st of March, 1793,) and thereby Caleb Bull and wife were barred of all right of appeal by a statute of Connecticut. There was no law of that state whereby a new hearing or trial before the said court of probate might be obtained. Calder and wife claim the premises in question, in right of his wife, as heiress of N. Morrison, physi cian; Bull and wife claim under the will of N. Morrison, the grandson. The counsel for the plaintiffs in error contend that the said resolution or law of the legislature of Connecticut, granting a new hearing in the above case, is an ex post facto law, prohibited by the constitution of the United States; that any law of the federal government, or of any of the state governments, contrary to the constitution of the United States, is void; and that this court possesses the power to declare such law void. It appears to me a self-evident proposition, that the several state legislatures retain all the powers of legislation, delegated to them by the state constitutions, which are not expressly taken away by the constitution of the United States. The establishing courts of justice, the appointment of judges, and the making regulations for the administration of justice, within each state, according to its laws, on all subjects not entrusted to the federal government, appears to me to be the peculiar and exclusive province and duty of the state legislatures. All the powers delegated by the people of the United States to the federal government are defined, and no constructive powers can be exercised by it; and all the powers that remain in the state governments are indefinite, except only in the constitution of Massachusetts. The effect of the resolution or law of Connecticut above stated is to revise a decision of one of its inferior courts, called the court of probate for Hartford, and to direct a new hearing of the case by the same court of probate that passed the decree against the will of Normand Morrison. By the existing law of Connecticut a right to recover certain property had vested in Calder and wife, the appellants, in consequence of a decision of a court of justice; but, in virtue of a subsequent resolution or law, and the new hearing thereof, and the decision in consequence, this right to recover certain property was divested, and the right to the property declared to be in Bull and wife, the appellees. The sole inquiry is, whether this resolu |
