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but if we do

But if we are empiricists, if we believe that no bell in us tolls to let us know for certain when truth is in our grasp, then it seems a piece of idle fantasticality to preach so solemnly our duty of waiting for the bell. Indeed, we may wait if we will, I hope you do not think that I am denying that, so, we do so at our peril as much as if we believed. In either case we act, taking our life in our hands. No one of us ought to issue vetoes to the other, nor should we bandy words of abuse. We ought, on the contrary, delicately and profoundly to respect one another's mental freedom: then only shall we bring about the intellectual republic; then only shall we have that spirit of inner tolerance without which all our outer tolerance is soulless, and which is empiricism's glory; then only shall we live and let live, in speculative as well as in practical things.

I began by a reference to Fitz-James Stephen; let me end by a quotation from him. "What do you think of yourself? What do you think of the world?... These are questions with which all must deal as it seems good to them. They are riddles of the Sphinx, and in some way or other we must deal with them. In all important transactions of life we have to take a leap in the dark. . . . If we decide to leave the riddles unanswered, that is a choice; if we waver in our answer, that, too, is a choice but whatever choice we make, we make it at our peril. If a man chooses to turn his back altogether on God and the future, no one can prevent him; no one can show beyond reasonable doubt

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that he is mistaken. If a man thinks otherwise and acts as he thinks, I do not see that any one can prove that he is mistaken. Each must act as he thinks best; and if he is wrong, so much the worse for him. We stand on a mountain pass in the midst of whirling snow and blinding mist, through which we get glimpses now and then of paths which may be deceptive. If we stand still we shall be frozen to death. If we take the wrong road we shall be dashed to pieces. We do not certainly know whether there is any right one. What must we do? 'Be strong and of good courage.' Act for the best, hope for the best, and take what comes. If death ends all,

we cannot meet death better."1

1 " Liberty, Equality, Fraternity," p. 353, 2d edition. London, 1874.

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From the stenographic report of the argument before the Supreme Court of the United States in the Income Tax Cases, pp. 1-37.

I have discussed and analyzed this argument so fully in the Introduction, that I need not say much here. The analytical brief of the argument which follows shows the logical power with which, though an oral argument, it was thought out. Its force rests even more on the systematic and thorough explanation of the law than on the eloquence.

The case arose under the Act of August 15th, 1894, which provided, among other things, that "there shall be assessed, levied, collected, and paid annually upon the gain, profits, and income received in the preceding calendar year by every citizen of the United States — whether said gains, profits, or income be derived from any kind of property, rents, interest, dividends, or salaries, or from any profession, trade, employment, or vocation - a tax of two per centum on the amount over and above four thousand dollars." A full statement of the facts may be found in the official report, in 157 U. S. Reports, p. 429; they are of interest chiefly to lawyers.


The portions of the argument enclosed in the square brackets are omitted by the official report -157 U. S. Reports, 429either as not essential to the reasoning (see the Introduction, p. 80), or from the point of view which the Court took, as irrelevant. They may fairly be considered, therefore, as pure persuasion, automatically, as it were, and impersonally, set apart from the logical body of the argument. The words printed in italics and enclosed in parentheses are used in the official report in the process of condensation. At the end of this part of the argument Mr. Choate passed on to a discussion of the cases

already decided by the Court which bore on the point before him; and then to the discussion of another constitutional point.

The argument may be analyzed as follows:


A. Introduction: (1) This Court is not to be influenced by popular wrath (p. 319); for

(2) it is created to maintain the Constitution against Congress (p. 319).

I. There are private rights of property to be protected (p. 320).

(1) The neglect of these rights leads to communism (p. 320). II. The result of this law will be to make four States pay nine-tenths

of the whole tax (p. 321).

(1) This result is in violation of two of the restraints of the Constitution (p. 323);

(2) and if sustained, Congress is left free to confiscate with no redress under the Constitution (p. 324). III. Civilized government rests on the preservation of the rights of

private property (p. 325).

IV. There is no doubt of the power of Congress to lay taxes (p. 327). V. But Congress has no power to confiscate (p. 327).

B. I. This tax is void because it is a direct tax not imposed by the

rule of apportionment (p. 328).

(1) The rule rests on the distinction of the Constitution be

tween direct taxes and duties, imposts and excises (p. 329). (2) It therefore leaves free inexhaustible sources of taxation both by the rule of uniformity and by the rule of apportionment (p. 330).

II. The Constitution provides that (1) representatives and direct taxes shall be apportioned (p. 332);

(2) that Congress shall have power to lay and collect taxes, duties, imposts, and excises (p. 332);

(3) but that "all duties, imposts, and excises shall be uniform throughout the United States" (p. 332).

a. The omission of the word "taxes" in the last clause shows that the Constitution had already provided for their regulation by the rule of apportionment (p. 333).

b. Between the two provisions there is no room for any unforeseen tax (p. 334).

c. It was the purpose of the framers to restrain the taxing power on all kinds of property (p. 336).

III. A tax upon income is under the Constitution a direct tax (p. 337). (1) The document itself shows, apart from what we know of its transactions, how important was the distinction between taxation by apportionment and by uniformity (p. 338). a. Real estate was undoubtedly the subject of a direct tax (p. 339).

(1) whether improved or unimproved (p. 340).

b. A tax on the rent of real estate is indistinguishable from a tax on the real estate itself (p. 341).

(1) For this court always goes for the substance (p. 342);

(2) and the tax on the rent cannot be escaped except by abandoning the land (p. 343).

(3) If the Constitution had forbidden a tax on real estate there could have been no tax on the rents (p. 344).

(4) The common law refuses to distinguish between real estate and the rents and profits of it (p. 345).

(5) This doctrine has been declared by this court (p. 346).

c. So, a tax on the income of personal property is indistinguishable

from a tax on the corpus of the personal estate (p. 349).

(1) Since there is no means of avoiding the tax except by abandoning the property (p. 349).

IV. a. By taxes in the first clause of Section 8 are meant taxes which

are collected under a general assessment (p. 350).

(1) The exemption of incomes under $4000 does not avoid this provision, for (p. 351)

(2) it is provided by the act that the collection shall extend throughout the country (p. 351).

b. The corpus of the personal estate must therefore fall under a direct tax only (p. 351).

c. Since taxation of the income of personal property can destroy the value of the property itself, the tax on the income is also a direct tax (p. 352).

V. a. It was intended by the makers of the Constitution that the rule

of apportionment should be unequal (p. 353).

(1) It was the result of the compromise by which the seaboard States gave up the right of impost in return for exemption from the danger of unjust direct taxes (p. 353).

b. Moreover, the States were fearful of just such taxation without proportional representation as is found in this bill (p. 356).

[IF the Court please: After Jupiter had thundered all around the sky, and had levelled everything and

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