3 Dallas, 171, in which for the first time it exercised
its function of passing upon the constitutionality of an
Act of Congress. It is a most singular circumstance
that a case of such consequence, involving the question
whether a Federal tax on carriages was a direct tax
within the meaning of the Constitution, should have
been presented on an agreed statement the facts in
which were fictitious, should have been actually a moot
case since the counsel on both sides were paid by the
Government, and should have been decided by only
three of the six Judges; yet all these features were
present in the case. The defendant Hylton formally
stated that "my object in contesting the law upon
which the cause depends" is "merely to ascertain a
constitutional point and not by any means to delay the
payment of a public duty/' ^ The Government in its
agreed facts made the fictitious allegation that the
defendant kept one hundred and twenty-five chariots
"exclusively for the defendants' own private use and
not to let out to hire/' And the Government entered
into a formal stipulation to pay the counsel fees on both
sides for the argument in the Court, since, as Attorney-
General Bradford wrote to Hamilton, the appellant's
counsel had advised him "to make no further argument
and to let the Supreme Court do as they please, and
that in consequence of this advice no counsel will ap-
pear in support of the writ of error. Having succeeded
in dividing the opinion of the Circuit Court, he wishes
to prevent the effect which a decision of the Supreme
^ This fonoAl statement by Hylton does not appear in Dallas ReporU but is on the files of the Court. 7th Cong., 1st Sest, The fictitious allegation in the agreed facts was undoubtedly to give jurisdiction to the Circuit Court in the sum of $2000, the tax and penalty for one chariot being only $16, and the agreed facts reciting that : "If the Court adjudged the defendant to be liable to pay the tax and fine for not doing so and for not entering the carriages, then judgment shall be entered for the plaintiff for $8000 to be dischaiged by the payment of sixteen dollars, the amount of the duty and penalty."
