2o8 HARVARD LAW REVIEW, by the present learned Chief Justice of the United States is due to the fact that it has unfortunately escaped his notice that Madison's final opinion was in favor of the constitutionality of such acts as the Carriage Tax Act. And it is further conceived, with the greatest deference, that too much weight was given to the learned and brilliant brief of Alexander Hamilton, who appeared for the United States in Hylton v. United States.^ He was Secretary of the Treasury when the Carriage Tax Bill was passed, and his brief and argument in support of that act, by making a limited conten- tion, ought not to be taken as his whole opinion. But even in that brief he says, as quoted by Mr. Chief Justice Fuller : " The fol- lowing are presumed to be the only direct taxes : Capitation or poll taxes, taxes on lands and buildings, general assessments, whether on the whole property of individuals or on their whole real or personal estate. "^ Thus evidently meaning that a tax to be direct must be levied upon the whole real or personal prop- erty of all the inhabitants. Provision is made in the Constitution for the levy and collection of all kinds of taxes known at the time of the making and adoption of that instrument. Excises, imposts, duties, capitation and direct taxes are all authorized eo nomine, and provision made for their assessment. If it be true that there are direct taxes which may be levied under the Constitution uniformly and not by apportion- ment, it is apparent that the term " direct taxes " in that instru- ment must have a limited and special meaning. Now, besides capitation taxes, which necessarily are direct, and which by the terms of the Constitution are to be levied by the rule of apportion- ment, if there ever was a direct tax, it was the carriage tax, the con- stitutionality of which was supported in Hylton v. United States,^ and the succession tax levied by the Act of June 30, 1864,* and supported in Scholey v, Rew,^both of which were levied under the rule of uniformity. It is begging the question utterly to call them excises. Indeed, the remark of the learned Chief Justice in Pollock V. Farmers' Loan & Trust Co., that " what was decided in the Hylton case was, then, that a tax on carriages was an excise, and, therefore, an indirect tax, " is, it is submitted, totally unintelligible, unless it is meant thereby that the carriage tax was not a " direct tax " within the meaning of the Constitution.^ 1 3 Dall. 171. * 13 Stat. 287 ; u Stat. 140, 141. 2 7 Hamilton's Works (Lodge's ed.), 332 ; 157 U. S. 572. ^ 23 Wall. 331. » 3 Dall. 171. «iS8U. S. 627.
