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everybody by his prodigious bolts, Mercury came out from his hiding-place, and looked around to see how much damage had been done. He was quite familiar with the weapons of his learned Olympian friend; he had often felt their force, but he knew that it was largely stage thunder, manufactured for the particular occasion, and he went his round among the inhabitants of Olympus restoring the consciousness, and dispelling the fears, and raising the spirits both of gods and men who had been prostrated by the crash. It is in that spirit that I follow my distinguished friend; but I shall not undertake to cope with him by means of the same weapons, because I am not master of them.
It never would have occurred to me to present either as an opening or closing argument to this great and learned Court, that if in your wisdom you found it necessary to protect a suitor who sought here to cling to the ark of the covenant and invoke the protection of the Constitution which was created for us all, it was an argument against your furnishing such relief and protection that possibly the popular wrath might sweep the Court away. It is the first time I have ever heard that argument presented to this or any other court, and I trust that it will be the last.
Now, I have had some surprises this morning. I thought until to-day that there was a Constitution of the United States, and that the business of the executive arm of this Government was to uphold that Constitution. I thought that this Court was created for the purpose of maintaining the Constitution
against unlawful conduct on the part of Congress. It is news to me that Congress is the sole judge of the measure of the powers confided to it by the Constitution, and it is also news to me that the great fundamental principle which underlies the Constitution, namely, the equality of all men before the law, has ceased to exist.
If your Honors please,] I look upon this case with very different eyes from those of either the learned Attorney-General or his distinguished associate who has just closed. I believe there are private rights of property here to be protected; that we have a right to come to this Court and ask for their protection, and that this Court has a right, without asking leave of the Attorney-General or of any counsel, to hear our plea.
[No longer ago, if the Court please, than the day of the funeral procession of General Sherman in New York, it was my fortune to spend many hours with one of the ex-Presidents of the United States, who has since followed that great warrior to the bourne to which we were then bearing him. President Hayes expressed great solicitude as to the future fortunes of this people. In his retirement he had been watching the tendency of political and social purposes and events. He had observed how in recent years the possessors of political power had been learning to use it for the first time for the promotion of social and personal ends. He said to me, "You will probably live to see the day when in case of the death of any man of large wealth the State will take for itself all
above a certain prescribed limit of his fortune and divide it, or apply it to the equal use of all the people, so as to punish the rich man for his wealth, and to divide it among those who, whatever may have been their sins, at least have not committed that." I looked upon it as the wanderings of a dreaming man ; and yet if I had known that within less than five short years afterwards I should be standing before this tribunal to contest the validity of an alleged act of Congress, of a so-called law, which was defended here by the authorized legal representatives of the Federal Government upon the plea that it was a tax levied only upon classes and extremely rich men, I should have given altogether a different heed and ear to the warnings of that distinguished statesman.
It does seem to me now, if the Court please, that it is time for us to learn a little more about the real nature of this] (The) act of Congress which we are impugning before you. [It] is [far more] communistic in its purposes and tendencies [than anything President Hayes apprehended. It] (and) is defended here upon principles as communistic, socialistic what shall I call them - populistic as ever have been addressed to any political assembly in the world.
Now, what is this law? My learned friend, Mr. Carter, has said that in the convention which created the Constitution there was one ever-present fear. There was; I agree with him as to that. It was that by a combination of States an unjust tax might be put upon a single State or upon a small group of States. Let us see about this act which, exempting
all incomes under $4,000 of individuals, but denying the exemption to corporations and to persons drawing their income from corporations, seeks to raise a sum, as has been stated here, of from $30,000,000 to $50,000,000. There are sources of information as to how such a law will strike, to which I wish to direct the attention of the Court.
There was formerly an income-tax law, and the last year it was in force was the year 1873. The exemption then was $2,000. In that year the collections for that tax were such in the States of New York, Pennsylvania, Massachusetts and New Jersey that even then, with that exemption, those four States paid four-fifths of the entire tax. What is their political power? What is their political representation in the lower House of Congress, which only can initiate and secure the passage of revenue bills? Eighty-three out of three hundred and fifty-six, or a little less than one-quarter. Anybody who knows anything about the operation of these income-tax laws and as to the effect of changing the exemption from $2,000 to $4,000, knows that that inequality of burden will, under the act of 1894, press upon those four States with vastly greater force. [So that Massachusetts, New York, New Jersey, and Pennsylvania under this enactment, if it is allowed to stand, will pay not less than nine-tenths of the entire tax, a tax imposed upon them by other States, which, as the learned Chief Justice has quickly seen, as shown by his questions in the course of the argument, will hardly bear a dollar of it.
Now, what we come here to say is that] this most iniquitous result has been brought about by an express violation of two of the leading restraints of the Constitution [restraints upon the powers of Congress,
arranged, and carefully arranged, in the compromise that resulted in the creation of the Constitution itself, and without which this nation never could have been brought into being.
The learned Attorney-General says, and his associate re-echoes the proposition, that this is a state of things which cannot be helped that no matter how far wrong Congress goes, there is no help for it; but we think that there is, if Congress has exercised a power not granted to it by the Constitution, or has exercised it in a manner which the provisions of the Constitution forbid.
Have your Honors observed the argument-the main argument that has been presented in support of this law by the gentleman who has just closed? It is that the men upon whom this tax is imposed are too rich. The constitutional argument presented to justify it is that they are too rich. In Cromwell's time there was a sect of people that arose in the land from which our fathers came who were called "Levelers," and their platform was to level all existing ranks of society and all estates to an equality. The question is whether Congress can stand upon that platform and exercise that mission under the Constitution of the United States.
But I desire, if the Court please, to ask one or two questions.] Did your Honors observe what the