July 12, 1909

I now desire to submit for the consideration of this House the utterance of former President Roosevelt in his message to the Congress of the United States on December 4, 1906, when he used this language:

In its incidents, and apart from the main purpose of raising revenue, an income tax stands on an entirely different footing from .an Inheritance tax; because it involves no question of the perpetuation of :fortunes swollen to an unhealthy size. The question is in its essence a question of the proper adjustment of burden~ to benefits. ~s the law now stands, 1t IS undoubtedly difficult to devise a national mco;ne .tax . ' which shall be constitutional. But whether 1t 1s absolutely impossible is another question; and if. possible it ls most certainly desirable. The first purely income-tax law was pa:ssed by the. Congre s in 18Gl. but th~ most important law dealing with the subJect was that of 1804. This the court held to be unconstitutional.

The question is undoubtedly very intricate, delicate, and trouble ome. The decision of the court was only reached by one majority. It i s the law ot the 13.!J<;}. and is, of course, accepted. as such and loyally obeyed by all good citizens. Nevertheless, the hesitation evidently felt by the court as a whole in coming to a conclusion,. when considered together with the previous decisions on the subject, may perhaps indicate the possibility of devising a constitutional income-tax raw which shall . substantially accomplish the result aimed at. The dJ . difficulty of amending the Constitution is so great that only real necessity can justify a resort. thereto. Every effort should be made in dealing with this sub· ject, as with the su.bject of the proper control by the National Government over the use of corporate wealth in interstate business, to de· vise legislation which without such action shall attain the desiled end ; but if. this fails, there will ultimately be no alternative to a constitutional amendment.

l\fr. Speaker it will be observed · here that he sucrgests that . ' th • . •t t teh · the court be given ano et opportUill Y ' o pass upon e mcometax question. He says: · The decision of the court was only reached by 1 majority. Neverthe· less tbe hesitation evidently felt by the court as a whole in coming to a conclusion, when considered together with th& previous decisions on the subject, may perhaps . indicate the possibility of devising a constitutional income-tax law which shall substantially accomplish the results aimed at. These : statements of Mr: Taft and Mr. Roo evelt sllow that it took them twelve years to find out the Democratic party - was right; · for their utterances in r support ot the position.of our party come . twelve years after the Democratic party, with marvelous courage and • the fidelity · and love of country born of patriotism alone, challenged wealth's exemption fl.·orn taXa.tion and denied that the · poor and plain citizens of. the Republic~ . and . these alone; should bear by themselves the bUl'den of taxation; and advanced the hope that a rehearing of the case,. with the changed membership of the' court, would retm·n to the unbroken precedents of the _ Supreme Court of the United States for a. hundred years:- and hold . constitutional the incometax · law . [Applause.]

I desire now to quote · the language of Justice Harlan in his powerful dissenting opinion upon the Income Tax case. He said:

But the serious aspect of the present decision is that by a new interpretation of the Constitution it so ties the hands of the legislative branch of th e Government that without an amendment of that instrument, or unless this court at some future time should return to the old theory of the Constitution. Congress can not subject to taxationhowever great the needs or pressing the necessities of the Governmenteith e r the invested personal property of the country-bonds, stocks, and investments of all kinds-or the income arising from the renting of real estate, or from the yield of personal property, except by the gro s sly unequal and unju s t ul r e of apportionment among the States. The practical effect of the decision to-day is to give to certain kinds of property a position of favoritism and advantage inconsistent with the fundamental principl e s of our social organization, and to inv e st them with power and influence that may be perilous to that portion of the American people upon whom rests the larger part of the burdens of government, and who ought not to be subjected to the dominion of aggregated wealth any more than the property of the country should be at the mercy of the lawless .

Here is the language of this great judge, a member of this court, suggesting: " Unless this court at some future time should return to the old theory of the Constitution."

Justice Brown, in his dissenting opinion, uses this language: ~t is difficult to overestimate the importance of these cases. I certamly can not overstate the regret I feel at the disposition made of th.em by the court. It is never a light thing to set aside the deliberate will of the legislature, and in my opinion it should never be done, except upon the clearest proof of its conflict with the fundamental law . Respect for the Constitution will not be inspired by a narrow and technical construction which shall limit or impair the necessary powers of Congress. * • * · ·

By resuscitating an argument that was exploded in the Hylton case and has lain practically dormant for a hundred years, it is made to do duty in nullifying not this law alone, but every similar law that is not based upon an impossible theory of apportionment. • • *

It is certainly a strange commentary upon the Constitution of the United States and upon a democratic government that Congress has no power to lay a tax which is one of the main sources of revenue of nearly every civilized state. It is a confession of feebleness in which I find myself wholly unable to join.

While I have no doubt that Congress will find some means of surmounting the present crisis, my fear is that in some moment of national peril this decision will rise up to frustrate its will and paralyze its arm. I hope it may not prove the first step toward the submergence of the liberties. of the people in a sordid despotism of wealth.

As I can not escape the conviction that the decision of the court in language : this great case is fraught with immeasurable danger to the future of the country and that it approaches the proportions of a national calamity, I feel it a duty to enter my protest against iL

Mr. Speaker, he declares that the decision of 5 to 4 was only arrived at by resuscitating an argument that was. exploded in the Hylton case and had lain practically dormant for a hundred years. What more powerful arraignment could be made of .any decision than is here uttered by these two ornaments of the bench against the income-tax decision? Yet I merely call attention to these facts to show that the Democratic party throughout all these years has been making this fight for the righteous taxation of wealth; that our language was mild as compared with theirs; that our arraignment was exceedingly tame when placed alongside of theirs. The candidate of the Democratic party, William J. Bryan, standing in Madison Square Garden in 1896, used this language : · ' The Chicago platform has been condemned by some because it dissents from an opinion rendered by the Supreme Court declaring the incometax law unconstitutional. Our critics even go so far as to apply the name "anarchist" to those who stand upon that plank of the platform. It must be remembered that we expressly recognize the binding force of that decision so long as it stands as a part of the law of the land. ~here is in the platform no suggestion of an attempt to dispute the authority of the Supreme Court. The party is simply pledged to use " all the constitutional power which remains after that decision, or which may come from its reversal by the court as it may hereafter be constituted." Is there disloyalty in that pledge? For - a hundred years the Supreme Court of the United States has sustained the principle which underlies the income tax. Some twenty years ago this same court sustained without a dissenting voice an income-tax law almost identical with the one recently overthrown. Has not a future court as much right to return to the judicial precedents of a century as the present 1 court had to depart from them ? When courts allow rehearings they I admit that error is possible; the late decision against the income tax was rendered by a majority of one after a rehearing.

I desire it distinctly understood that I shall offer no apology for the income-tax plank of the Chicago platform. The last income-tax law sought to apportion the burdens of government more equitably among tho s e who enjoy the protection of the Government. At present the expenses of the Federal Government, collected through internal-revenue taxes and import duties, are especially burdensome upon the poorer cla s ses of society. A law which collects from some citizens more than their share of the taxes and collects from other citizens leS's than their share is simply an indirect means of transferring one man's property to another man's pocket, and, while the process may be quite satisfactory to the men who escape just taxation, it can never be satisfactory to those who are overburdened. The last income-tax law, with ' its ex· emption provisions, when considered in connection with other methods of taxation in force, was not unjust to the possessors of large incomes, because they were not compelled to pay a total federal tax greater than their share. The income tax is not new, nor is it based upon hostility to the rich . The system is employed in several of the most important nations of Europe, and every income-tax law now upon the statute books in any land, so far as I have been able to ascertain, contains an exemption clause. While the collection of an income tax in other countries does n ot make it necessary for this Nation to adopt the system, yet it ought to moderate the langu a ge of those who denounce the income tax as an assault upon the well to do.

Not only shall I refuse to apologize for · the advocacy of an incometax law by the national convention, but I shall also refuse to apologize for the exercise by it of the right to dissent from a decision of the Supreme Court. In a government like ours, every public official is a public servant, whether he holds office by election or by appointment, whether he serves for a term of years or during good behavior, and the people have a right to criticise his official acts. "Confidence is everywhere the parent of despotism ; free government exists in jealousy and not in confidence . " These a.re the words of Thomas Jefferson, and I submit that they present a truer conception of popular government than that entertained by those who would prohibit an unfavorable comment upon a court decision. Truth will vindicate itself ; only error fears speech. No public official who conscientiously discharges his duty as he sees it will desire to deny to those whom he serves the right to discuss his official conduct.

Here we behold, Mr . Speaker, this patriot throwing down the gage of battle in the very citadel of wealth. He was maligned and slandered then, but what a glorious victory he is having upon this question! What a marvelous vindication he is receiving now ! The whole Nation upon tiptoe now approving his stand on the question of an income tax. And, sir, when those who have maligned him have been forgotten, this man who bore three times with honor and with courage the standard loved by millions of his countrymen, battling for equality of taxation, equality of opportunity, striving for the righteousness a republic owes to its people, obedience to law by the great and small, that the taxgatherer should visit alike the cabin and the palace, the hut and the mansion, I say, sir, that when the fiunkeys and the adulators shall no longer find favor in their fawning nor pay for their abuse, the principles advocated by William J. Bryan, the lover of men and of the rights of men, will live in the Constitution and shine in the statute laws of the land .

l\Ir . Speaker, our Republican opponents took advantage of this position of the Democratic party and called to their aid every corporation and millionaire in the Republic, seeking to defeat the party which would tax all men fairly .

Many bills have been introduced by Democrats in Congress providing for an income-tax law during the last ten years, only ta be smothered and defeated by the Republican machine. Mr. . Taft, in accepting the Republican nomination in 1908, used this The Democratic platform demands two constitutional amendmentsone providing for an income tax and the other for the election ot Senators by the people. In my judgment, an amendment to the Constitution for an income tax is not necessary. I believe that an income tax, when the protective system of customs and the internal-revenue tax shall not furnish income enough for governmental needs, can and should be devised, which, under the decisions of the Supreme Court, will conform to the Constitution .

The Republican party in the present extremity is forced to take both these principles in dealing with the income tax from the Democratic national platform. We were told by Mr. Taft that no constitutional amendment was needed; that the changed membership of the court would hold an income tax constitutional. The gentleman from Minnesota [Mr. Stevens], one of the ablest Members upon the Republican side, upon the floor of this House, on March 25, 1909, used this language :

For that reason it seems to me to be wise to draft a bill with separate clauses, putting a tax upon incomes of real estate in one clause and declaring that the invalidity of that clause should not affect the balance o:f the provisions of the act. The same could be done as to personalty, and so on, as to the various classes and subjects of taxation. By this method any tax of any substance might be retained, even if some be found to be invalid upon the final consideration. Upon arriving at that conclusion I laid the ma.tter before President Roosevelt. He was delighted with the suggestion, and inquired in what way he could be of assistance. He referred me to the Secretary of the Treasury, who also gladly promised cooperation. The Secretary directed his subordinate officers to prepare a bill along these lines, but for some reason or other those officers neglected to ao so and did not report their ne g ligence until the very last week of last session. We were all rushed in the last days of the session, so I concluded to wait until the new administration came i.n.

I laid this matter before President Taft as I am explaining it to the House, and be also was pleased at the suggestion and promised cooperation to see that a bill was prepared as a basis for my own suggestions. The administration assumed no responsibility and the administration had no views in connection with the matter. All it did was to tender the services of the executive departments to do the work for this measure, exac t ly as it does for nearly every measure of importance presented to the House. And that is what I desire to have ma.de clear, that whatever I do is on my own responsibility. I am only seeking advice and assistance from the various bureaus in the department of administration and from whatever source I can get it.

l\Ir. Speaker, the newspapers of the country had announced that the income-tax bill of the administration would be intro ­ duced by l\Ir. STEVENS of Minnesota . It will be observed that he says in this speech that he laid the matter before President Roosevelt and he was delighted with the suggestion, and inquired in what way he could be of assistance. He referred next to the Secretary of the Treasury, who also promised cooperation. The purpose of this was to resubmit the income-tax question to the Supreme Court of the United States, as declared by the Democratic national convention in 1896 . The gentleman from Minnesota [M r. STEVENS] proceeds and says he laid this matter before President Taft, as he was explaining it to the House, and he also was pleased at the · suggestion and promised cooperation to see that a bill was prepared as a basis for his suggestions. Nothing was said then about an amendment to the Constitution upon the income-tax question. Mr. Speaker, this worming in and worming out of the Republican party and its leaders on the income-tax question forces me almost to question their sincerity in being its friend. I shall vote, Mr. Speaker, to submit this constitutional amendment to the States; but when I do so, I do not concede, nor does the Democratic party concede, that Congress has not now the power to impose such a tax. Our national platform of 1908 says:

We favor a.n income tax as part of our revenue system, and we urge the submission of a constitutional amendment specifically authorizing Congress to levy and collect a tax upon individual and corporate incomes, to the end that wealth may bear its proportionate share of the burdens of · the Federal Government.

There is no contradiction between this position of submitting an amendm~nt to the Constitution to the States and passing an income-tax bill at this session of Congress providing for an income tax, for the reason that there were two or three questions before the Supreme Court upon the question of taxing incomes from various sources, which the court unanimously agreed were not subject to taxation. A constitutiona~ amendment will remedy this situation and give to Congress the power "specifically" to lay such a tax. We could then proceed to resubplit to the "changed membership of this court" these questions where the court stood 5 to 4 by reason of the changed opinion of one member of the Supreme Court, and I believe, as . I believe I am in the House of Representatives at this moment, that the Supreme Court will return to the long line of decisions holding the income tax to be con~titutional. What shall our Republican friends do about this question? Is the bill promised by the Republican leader [Mr. STEVENS of Minnesota] to fall by the wayside? It delighted Mr. Roosevelt, it pleased Mr. Taft, it met the approval of the Secretary of the Treasury. I believe I speak for the Democratic side when I say . we stand ready now, as we have for twelve long years, to pass such a bill. Will you give us the opportunity; or are you attempting to dodge behind 12 States in the · Union and defeat-the income-tax amendment, and in this way prevent the wealth of the country paying any part of the taxing burden? I am delighted to offer you the platform of 1896 as your remedy for such a bill, as with a delight which equals, if it does not surpass it, I offer the Democratic platform of 1908 providing for the constitutional amendment.

This battle, Mr. Speaker, for the income tax has just begun. We intend to carry it to the last ditch . . I sincerely trust that in every State in the Union when a man becomes a candidate for the legislature or for the Senate, whether he be Republican or Democrat, the people will force him to say how he stands upon the question of the income tax. Make him speak out either for or against the people. Wealth is always organized; corporations stand fighting it now. The people must be aroused if they will succeed. Mr. Speaker, in my judgment, the most unfortunate decision ever written was the one holding the income-tax law unconstitutional. For a century this law had been held constitutional by an unbroken chain of decisions reaching . from the first link forged by the Revolutionary judges down for more than a hundred years; a chain · of decisions so strong that Abraham Lincoln girded it about the Republic in its darkest hour in the war between the States. [Applause on the Democratic side.] It stood all these tests; it grew strong . with age. Its repeated upholding by the court through this long line of decisions, its long acquiescence in by the people, its absolute justice , its immeasurable equity , stamp it a law better than stare decisis, for it is a law as just as the Republic ever made, so fair and so righteous that it might be called the "golden rule of taxation." [Applause on the Democratic side.] To . my mind the income tax is the most equitable of all systems of taxation. It is the ideal way to support the Government. Let those who prosper little pay little, for they are least indebted to the Government; let those who prosper more pay more; let those who prosper most pay most; let those who prosper greatly pay greatly, for certainly they have been most blessed and are therefore most indebted to the Government What man 1s so ungrateful to his country that he is unwilling to pay a small tax upon his income above $5,000 to help sustain and perpetuate the Government under which he enjoys such success? Many bills have made such provision, but to meet defeat at the hands of the Republican party, which has always opposed taxing wealth in any degree.

Who is prepared to defend as just a system of taxation Uiat requires a hod carrier, who for eight long hours each day wends his way to the dizzy heights of a lofty building with his load . of mortar or brick, to pay as much to support this great Ilepublic as John D. Rockefeller, whose fortune is so great that it staggers the imagination to contemplate it and whose property is in every city and State in the Republic and upon every sea protected by our flag. [Applause on the Democratic side.] Who believes that it is just to say that 23 farmers in my district, who · by a life of self-denial and unceasing toil have been enabled only to accumulate 200 acres of land and a · mod e st home, who in sunshine and storm labor on, who by such a life only own in this world's goods $5,000 each-is it just, I inquire, for these men to pay as much taxes to keep up this Government as the 23 men who compose the directorate of the New York City Bank, which has a controlling financial power of $11,000,000,000, or one-tenth of the wealth of the United States? Should these men, I submit, who control as much wealth as all the people in the States south of Mason and Dixon's line, pay no more taxes to support this Republic than the 23 farmers in my district whose total wealth only amounts to $115,000? Yet under the system of taxation · now in operation in this Government, under the Republican party, the 23 farmers pay the most tax to keep up the Federal Government. Is it a matter of great speculation, then, that wealth is so unequally distributed? I am quite free to confess, Mr. Speaker, that it is impossible for me to find one single just reason for opposing the income tax. How men can defend a system of taxation in a republic which requires of the poor all of its taxes and exempts the rich absolutely I am totally unable to see. In the everyday walks of life we expect more for church, for charity, for . the uplifting of society, and education from those who are most prosperous, most wealthy, most . able to give. Yet the system of taxation advocated by the Republican party drives the taxgatherer to the tenement house and makes him skip the mansion, drives him to the poorhouse and lets him pass the palace. [Applause on the Democratic side.]

No man can be found, Mr. Speaker, with rarest exception, who will deny the equity of an income tax. They offer no argument in opposition to it. Their only refuge that I have been able to observe is that it is unconstitutional; and when they say this they are all afraid to give the Supreme Court another chance to pass upon it [applause] to see whether the court was right for a hundred years and wrong for fifteen, or wrong for a hundred years and right for fifteen.

I have heard it urged by some gentlemen upon the Republican side that the passage of an income-tax law would undermine and at last destroy the protective-tariff system. This, Mr. Speaker, is equivalent to saying that in order to give a few monopolists and manufacturers the right to reach into the pockets of all the people, you have kept the taxgatherer from reaching into the pockets of the few, the fortunate few, the intrenched few, the successful few; but you have driven the taxgatherer to the same pockets which monopolies pillaged under the protecti-ve tariff for taxes to sustain the Government. The protective-tariff system is vicious enough in itself without adding to it the iniquity of saying that in order to perpetuate it you · must place the taxing burden of the Government upon the masses of the people, who must also bear the heavy burden the protective-tariff system inflicts upon them.

Mr. Speaker, no tax was ever more unjust, in my opinion, than a tax upon consumption, for all must eat to live, all must wear clothes, and when you place a tax upon what it take:;;; to sustain one, you announce the doctrine that all men share alike in the blessings of government, that all men prosper equally. But we have only to look about us to see how false this doctrine · of taxation is. A tax upon what some people eat and what they wear would deny them the necessities of life, while others, rolling in opulence and accumulating their wealth into the millions, would not feel such a tax. Then, besides this, Mr. Spe a ker, the protective-tariff system has become so vicious in this Republic that the Republican party's candidate, Mr. Taft, promised the · country a re v ision, and a revision downward. But, like that party always does, it procrastinated this relief. It said it would come to the people after the election. · The Democratic party said the reason it wanted first to be entrenched in power and put off this promised relief until after the election was because the Republican party intended to deceive the people. And behold now, Mr. Speaker, the truth of this prophecy. What a shameless -violation of the promised revision downward do we now behold ! The betrayal of the people by the Republican party is written in this House and at the other end of the Capitol, for the revision has been upward and not downward. The reason the Republican party would not reform the tariff before the election was they knew if they did reform it in the interests of the people, the corruption fund, which they were so used to receiving, would be denied them by the favored few with whom they were in partnership. They knew if the legislation was in the interest of the monopolies, aa it now is, the people would rebuke them, so they put it off until after the election.

Mr. Speaker, this battle for an income tax will go on. This is the people's Government and - the right will prevail. During all these years the mighty rich-an army of millionaires-have been exempted from taxation, but the people .are now aroused. There are two lines of battle drawn for this great contest. Under which :flag will you stand-the flag of Democracy or the flag of plutocracy?

We shall win, for-

Still, Truth proclaims this motto

In letters of living light:

No question is ever settled

Until it is settled right.

[Applause on the Democratic side.]

And I would scorn, Mr. Speaker, a government whose taxing power provides that Lazarus must divide his crumbs with the taxgatherer, but that Dives shall not give of his riches. [Great applause on the Democratic side.] .

Mr. LONGWORTH. Mr. Speaker, I ha-ve been requested by the gentleman from New York [:Mr. PAYNE] to control the time on this side during his absence from the Chamber.

The SPEAKER. The Chair desires to state that the gentleman from New York was entitled to one hour, and the gentleman from Missouri who was recognized 1s entitled to one hour.

l\Ir. CLARK of Missouri. Mr . . Speaker, my understanding was that the gentleman from New York [Mr. PAYNE] controlled the time on that side, and that I controlled all the time .on this side.

The SPEAKER. The Chair has no objection to the gentle- man from New York and the gentleman from Missouri controlling the time.

Mr. CLARK of Missouri. Then, I - ask unanimous consent that the time be controlled by the gentleman from New York on that side and that I control the time on this side. .

The SPEAKER. The gentleman from Missouri asks unanimous consent that the time which was allowed by unanimous consent for debate shall be controlled, one hour and three quarters by _ the gentleman from New York and two hours by the gentleman from Missouri. Is there objection?

There was no objection.

Mr. LONGWORTH. I will ask the gentleman from Missouri to use some more of his time, as there is no gentleman at present who wishes to speak on this side.

Mr. CLARK of Missouri. I will yield five minutes to the gentleman from New York [Mr. HARRISON].

l\Ir. HARRISON. Mr. Speaker, I am in favor of this resolution, and shall vote for it. At the same time I have grave doubts of the advisability of attempting to put through any special form of taxation at the end of this long tariff agitation. However, this income-tax amendment is a confession by the Republican party that they are unable to raise sufficient revenue by means of a tariff and that they must resort to .another form of taxation. For seven long years the Nation has been dancinO' and now it is called upon to pay the piper. Our spree is over, and we are now realizing how sad is the way of the man who has lived beyond his income. It must be admitted, however, that in such an emergency an income tax is the soundest of . Democratic doctrine, and you Republicans. · as was well stated by the gentleman from Kentucky [Mr . .JAM.Es], are turning to us in this crisis for remedial legislation. _ There is a feature of this resolution, moreover, which especially commends it to me. If the resolution prevails, it should be incumbent on the conferees upon the tariff to drop immediately from consideration the proposed corporation tax put into the bill by the Senate. This resolution now before the House provides for the taxing of incomes from whatever source derived. That means taxes upon incomes of corporations as well as individuals. In my opinion the corporation tax as it passed the Senate is unconstitutional; but if this resolution prevails and the States give us the constitutional right to pass a law taxing the incomes of corporations as well as individuals, such doubts will be at once removed. Moreover, as it now stands, alone, without an individual income tax, the corporation tax is the most grossly unfair impost ever levied by motion of either Chamber of Congress. It is unfair because it will allow one man with a $100,000 income to go free, while another man who may get $10,000 in income must pay the ta.x because his business is incorporated. It allows the man conducting a grocery business upon one corner of the street to go scot-free, while another man that carries on the same business on the next corner of the same street is obliged to pay a tax because he has incorporated his business. It thus violates the fundamental principle of taxation, namely, that its burdens should be equally distributed.

But, aside from all that, it tends to what is even more dangerous-an attempt to change our form of government through the taxing power of the Congress .

If such n change toward government control of business is to be adopted, it should be done as is proposed by this resolution, namely, by a constitutional amendment. We should resist to the utmost any attempt of the Congress to change, through the taxing power, the form of government under which we have conducted our affairs for so many generations.

Mr. Speaker, as I have said, I believe that upon the adoption of this resolution, this unfair, this inequitable corporation tax should at once be dropped by the conferees upon the tariff. It was put forward not really as a revenue raiser, but chiefly as a political expedient and primarily to give the Federal Government these gross inquisitorial powers. That is the feature of the corporation tax most commended by President Taft, and that is the feature of the tax to which I am most opposed. Why, gentlemen, suppose that at - some time - in the future while such a corporation tax was in force some Chief Executive were to send a member of his Cabinet to Wall street to collect campaign contributions for his reelection from the corporations in my city, what a mighty club he would have to hold over their heads. ·

Mr. Speaker, I hope the corporation tax will go out of the tariff conference, and I hope that the whole question will go over as it should go, to be considered by the States. A consideration by the States separately -0f the question of · an income tax, both individual and corporate, will provide what was demanded by the last Democratic platform, namely, a constitutional amendment permitting · a tax upon all kinds of income. [Applause on the Democratic side.]

Mr . CLARK of Missouri. Mr. Speaker; how much time did the gentleman from New York use?

The SPEAKER. He used ten minutes.

Mr. CLARK of Missouri. He only had five.

The SPEAKER. Five, or whatever it was. The messenger who keeps the time stated that the gentleman's time had expired, and the Chair was under the impression that he had ten minutes.

Mr. LONGWORTH. Mr. Speaker, I yield ten minutes to the gentleman from Ohio IMr. KEIFEB.]

Mr. KEIFER. Mr. Speaker, most everything comes within the scope of this debate, and especially are we allowed to hear what we have heard for many years, that exaltation that comes from the Democratic party when a thing is about to be done that some time in the history of the country some of the Democratic party has favored. It is said that this amendment proposed is to be useful in time of war. If there ever is any necessity for an income tax, of course it is when the Nation is at war. I want to say, Mr. Speaker, with the utmost kindness, that so far as history shows the Democratic party has not been in favor of an income tax in time of a great war, and it might well be that it should stand converted now . In the civil war, in the most trying period of it to the Union, when the question of an income tax was voted upon on this floor, every Democrat present and voting voted a _ against it and denounced it as unconstitutional. [Applause on the Republican side. ] Not a single Republican, as the REcoBD shows, voted against it.

In the Senate of the United States at that time every Democrat voted against an income tax save Mr. McDougal, of California-one only in both Houses. Now I congratulate the Democratic pa.rty after these many years in a conversion to the income tax so that it may be levied in time of war. I am not very much enamored of this proposition. I hope a just, equitable tariff bill will be passed to so levy import duties as to raise all the revenues that we need; but if it is necessary, I want the Republican party to be in a position that they can rely upon the Democratic party in voting for an income tax in . times of war and not have the cry then made by Democrats that it was unconstitutionaL I do ' not hear anybody disputing this last statement. [Applause and laughter on the Republican side.]

Mr. SULZER. Ancient history. '

Mr. KEIFER. That is admitted; ; but it is truthful history. Now, Mr. Speaker, there is something said about the necessity of an income tax to reach the idle rich; but if we had only the idle rich, I think I would rather like the programme; but there are in this country thousands and tens of thousands of enterprising spirits who have gone forth with energy, industry, and by displaying economy have acquired fortunes, and they are the persons who are to be reached by an income tax; and I am willing they shall be when the trying times come.

While it may be true that those who by their ability and providence amass :m estate are secure, an income must bear a pro . proportionately great share of the government taxes; · it should not be imposed upon them merely as a punishment.

My friend from Missouri [.Mr. CLARK] says that $5,000 is not enough exemption, and that he would have more. I do not agree with him. There are a hundred men with their families in this country who live on $500 a year to where there is one who lives on $5,000 . But that is not the test. If we need an income tax, we can have it if this amendment is ratified by the proper number of States in this Union.

Mr. GARRETT. Getting away from the economic phases of it, I want to ask the gentleman a question or two about this matter from a legal standpoint, independent of politics or the economic pha es of it.

l\fr. KEIFER. Go ahead.

Mr. GAilRN.rT. This amendment puts no time limit on the ratification, does it?

Mr. KEIFER. No.

Mr. GARRETT. Now, under the practice, as a practical [Laughter.] proposition, when can this matter be finally determined? When will the Secretary of State issue his declaration?

.Mr. KEIFER. Never, until three-fourths, I believe, of the States have ratified it.

Mr. GARRETT. Now, is it open forever for them to ratify?

Mr. KEIFER. So I understand.

Mr. GAilRET'l'. And can a State ratify and then take it back--

Mr. KEIFER. Mr. Speaker, let me answer that question.

Mr. GARRETT. Now, that is an interesting question.

1\fr . KEIFER. That question has arisen. There were two or more States in the Union that ratified the fourteenth amend ment to the Constitution, and I am sorry to say that one of those States was the State of Ohio, and after th~ ratification the state legislatures passed a resolution to rescind that ratification. My recollection is that the rescinding resolutions were di regarded by the Secretary of State in issuing his proclamation declaring that the fourteenth amendment was adopted .

Now, I may be mistaken, but I think the Secretary of State included Ohio as one of the States that had ratified the fourteenth amendment. That amendment was proclaimed ratified by the Secretary of State on July ~ , 1868, and in his proclamation he recited all the facts relating to the action taken by each State on the subject of ratifying or rescinding.

Mr. GARRETT. It is my recollection, if the gentleman will tutional. permit me-- -

Mr. KEIFER. Certainly, if I have the time. .

.Mr . GARRETT. It is my recollection that the late Senator Sherman, of Ohio, introduced a resolution in the Senate requiring, or instructing, the Secretary of State to issue the proclamation, and requiring in that resolution that the States could not rescind an action after having once accepted.

l\fr. KEIFER. I think that resolution was not adopted by the Congress.

Mr. GARRETT. I do not think o, either. Is it not true that there were some States which voted against the fourteenth amendment that subsequently changed their action? · Mr. KEIFER. I do not remember that definitely, but I think there were some States that took such action.

Mr. GARRETT. And the Secretary of State held that, while a State could not rescind its action when it adopted it, it could rescind its action when it failed to adopt it.

1\fr. KEIFER. ;r am only giving my recollection. I am not absolutely sure that there is any such case as the last one cited . I remember the other, for I was a member of the senate of the State of Ohio in 1868, when the rescinding resolution was passed, and I resisted it to the best of my ability.

Mr. GARRETT. The gentleman "ill find that there are some States--

Mr. KEIFER. I nm not disputing it, because I do not know.

Mr. CLAYTON. I would like to ask the gentleman a question.

The SPEAKER. The gentleman's time has expired.

:Mr. LONGWORTH. I yield five minutes more to the gentleman from Ohio [Mr. KEIFER].

Mr. CLAYTON. I would like to ask the gentleman a question. I did not have · the pleasure of hearing all his remarks, but I suppose that he intends to vote for this resolution?

Mr. KEIFER. Oh, yes. , .

.Mr. CLAYTON. And he thinks that the State of Ohio will also vote for it?

Mr. KEIFER. I suppose so; yes.

l\fr . CLAYTON. And the gentleman thinks it ought to?

Mr . KEIFER. Yes.

l\fr. CLAYTON. Then I understand the gentleman to criticise the remarks of the gentleman from Missouri [Mr. CLARK], that he would exempt incomes of $5,~ or less?

Mr. KEIFER. No; I do not criticise it. I was only speaking about the relative number of people that live on $500 a year and $5,000 a year.

Mr. CLAYTON. I would exempt probably all that did not exceed $10,000 myself if I had my way, and certainly exempt the poor man and certainly catch all these idle rich, these fellows that do not pay anything.

Mr. KEIFER. Now, I did not expect the gentleman to make a speech in my time.

Mr . CLAYTON. Does not the gentleman think that the cor ­ rect way to levy an income tax is to make it a tax on wealth and not upon want?

Mr. KEIFER. It was always so-you can not get much out of "want."

Mr. LONGWORTH. Will the gentleman yield to me?

Mr . KEIFER. I yield to anybody. ..

Mr. LONGWORTH. Would the gentleman exempt $7 ,5 00?

Mr. CLAYTON. I think I would be perfectly :frank with the gentleman, and say that I would not exempt the multimillionaires, and I would not continue this Republican policy of grinding the faces of the poor consumers in this country under your tariff taxes. I would put the tax upon wealth and not upon necessity. . [Applause on the Democratic side.]

Mr. KEIFER. I did not understand that I yielded time to the gentleman to make that speech again.

Mr. GARRETT. Will the gentleman allow me?

Mr. KEIFER. If it is just a question.

Mr. GARRETT. I do not want to pursue the economic phase of this question. I think the legal phase should be . considered in this matter. I want to submit to the gentleman, what, in his . opinion, would be the effect of this as applied to the time of ratification?

Mr. KEIFER. I think the time of ratification is not limited, either by the resolution or by the Constitution of the United States; That . is all I can say on that subject.

Now, Mr . Speaker, I have said all I ought to have said, and there may be some things I should not have said. But I am inclined to think that this is a wise resolution to _ adopt, in order that we may not have this question coming up from time to time in the courts, before the Supreme Court of the United States, to determine whether or not an income tax is constitutional. have had doubts myself about the matter . And yet I have read the decisions, the opinions of the judges supporting the constitutionality of the income tax and those denying it, and when I have gotten through them I have not been entirely satisfied one way or the other. I believe in having well-defined con ­ stitutional power for the Federal Government to act upon, and I am enough of a states right s man to be in favor of the Fed ­ eral Government exercising only those con titutional powers clearly given to the Federal Government. Those that are ex ­ clusively State I deny the right of the Federal Government to invade at all under any circumstance . If there be constitutional powers given to the State and likewise to the Federal Government, the State may exercise them unless the Federal Government intervenes, and when the Federal Government d oe s intervene, in such case, then the State will be ousted; but th se powers given to the States exclusively the Federal Government should keep hands off .

1\Ir. CLARK of Missouri. I yield frrn minutes to the gentleman from Tenne ee [1\fr. HULL]. ·

Mr. HULL of Tennessee. ~Ir . Speaker, when Senator Garrett Davis, of Kentucky, in 1864 offered a re olution in the Senate of the United States proposing an amendment to the Constitution for the purpose of forming two States out of New England, some comment and speculation occurred; but during the past few weeks the unexpected spectacle of certain so-called " old line, conservative" Republican leaders in Congress suddenly reversing their attitude of a lifetime and seemingly espousing, though with ill-concealed reluctance, the proposed income-tax a mend ­ ment to the Constitution has been the occasion of universal sur ­ prise and wonder. However, many strange things occur in the course of a Republican national administration. No per on at all familiar with the present trend of national l eg islation will seriously insist that the e same Republican leaders are overanxious to see the country adopt an income tax or that they would earnestly support a. measure de igned to speed the day of its coming. To what, then, can this course on their part be ascribed? What powerful influence, what new light, what deep-seated motive suddenly moves these political veterans to "about face" and to pretend to warmly embrace this doctrine which they have heretofore uniformly denounced and condemned in unmeasured terms? When I thus allude to these Republicans I am not to be understood as including all the Ile- I publicans in Congress, , but I do refer to most of the Republican leaders, men whose will is law to their obedient followers.

cumous CONDITIONS.

By reason of this strange course on their part the agitation in behalf of an income tax has assumed such a phase as to give the real friends of this doctrine just cause for apprehen ­ sion, if not alarm. In determining the wisdom or unwisdom of the course now being pursued by Congress to recover 'this lost power of taxation, it is due the American people that they should know who are the real friends of the income tax and who are only its pretended friends.

l\lr . Speaker, I desire to call the attention of this House and, so far as I can, of the country to the circumstances under which it is proposed by its Republican _ sponsors to pass this resolution to amend the Constitution. The American people need not delude themselves by the belief that most or · even many of those Members of Congress who have heretofore opposed the imposition of this tax are now in favor of the same by reason of their support of the resolution submitting the proposed amendment to the States for their ratification. On the conn·ary, . the present attitude of many of them is one of known hostility, and· the people are woefully mistaken if they suppose · ose that this amendment will not be seriously antagonized, not only by many powerful influences in the different · States, but even by many of the Members of Congress who will silently vote to submit this amendment to the various States for their action.

IlEVIEW OF INCOME TAX IN CONGRESS.

I trust I may be pardoned while I review in few words the recent steps taken in Congress with reference to this question. Early in the Sixtieth Congress it was my privilege to introduce in the House an income-tax bill, embracing the chief features of the income-tax law of 1894, omitting the provisions subsequently declared invalid by a unanimous Supreme Court. On the first day of the present session of Congress I reintroduced this measure, and a few days later I offered some extended remarks in support of it or some similar measure, urging its immediate consideration by the House: In referring to the decision of the Supreme Court of the United States, declaring the old income-tax law invalid, I used the following language: I agree that Members of Congress are under oath to support the Constitution, and that it is the duty of the Supreme Court, under proper circumstances, to construe and expound that instrument; · but I submit that where, in the judgment of Members of Congress, a palpably erroneous decision has been rendered by the Supreme Court, stripping the coordinate legislative branch of the Government of one of its strong arms of power and duty, a decision overturning a line of decisions extending over a hundred years of the Nation's history, a decision violating the doctrine laid down by all text-book writers and commentators on the Constitution, a decision running counter to the fixed policies of every department of the Government as uniformly pursued for more than a century-I say, under these circumstances, every Member of Congress owes to himself and to the country the duty of exhausting . every reasonable and legitimate means to secure a review by the court of the questions erroneously decided. * * * It is entirely proper that Congress should pass another income-tax act again raising the important questions deemed to have been erroneously decided by the Supreme Court heretofore, and by this course secure a rehearing upon these controverted questions. • • * But two methods are open by which to secure to Congress its taxing power lost under this decision, namely, an amendment to the Constitution, or a reversal by the Supreme Court of its former decision.

Speaking further, I urged that Congress first pursue the latter alternative . However, the House of Representatives passed the Payne tariff bill without including any feature of an income tax,- - save a provision imposing an inheritance tax. During the consideration of the Payne bill in the House I watched every opportunity, as did other Members of - the minority, to offer an income-tax aJI!end . ment and to secure an expression of the House thereon, but under the peculiar and irnnclad rules of the House not the shadow , of a chance was offered. Just prior to its pas age the Democrats _ ats in the House moved _ to recommit the Payne bill with instructions, among other things, to embody in it a comprehensive income-tax provision, but the Republican majority _. voted do . wn this proposition. Later, w · when the bill went to the Senate, the Senate Democratic caucus unanimously · agreed to urge the insertion of a similar income-tax amendment in the tariff bill as made up in the Senate. ,

The Senator from Texas [l\fr . BAILEY] had in the meantime proposed an amendment of this character ~n the Senate; likewise, the Senator from Iowa [Mr . CUMMINS] had proposed an amendment along similar, though no · t identical, lines. Very soon public sentiment in support of this movement began to - rapidly crystallize and to plainly manifest itself in every part of the country. Members of Congress hitherto lukewarm or indifferent, or opposed to this proposition, immediately opened their eyes and took notice, and notwithstanding the sleepless and strenuous efforts of its opponents, as the day for a test vote upon it approached in the Senate the surprising fact dawned upon them that a majority Qf the Senate was inclined, aye, was ready, to vote the Bailey-Cummins income - tax amendment into the ta r iff bill, and that such action was a foregone conclusion, · unless by some parliamentary device or legislative subterfuge the plans o f those in charge of this amendment could be thwarted and a division created among its supporters. What occurred? Remarkable to contemplate! It suddenly became noised around that · revenue, or some other kind of exigencies, necessitated the introduction and passage through another body of the twin or companion measures since better known as the corporation - tax amendment and an amendment to t-he Constitution empowering Congress to levy a tax on incomes .

IS THIS LEGISLATIVE . HONESTY?

The real purpose of those in charge of these two companion measures was not concealed and may be best indicated by the following statement made in another -part of the Capitol by the mightiest Republican of them all :

I shall vote for a corporation tax as a means to defeat the income tax . * * * I am willing to accept a proposition of this kind for the purpose of avoiding what, to my mind, is a great evil and the imposition of a tax in time of peace when there is no emergency, a tax which is sure in the end to · destroy the protective system. * * * It [the corporation tax] can be reduced to a nominal amount, and the features of the corporation tax that commend it to many Senators and a great many other people is that the corporation tax, if it is adopted, will certainly be very largely reduced, if not repealed, at tlle end of tico years .

The purpose of those who are sponsoring and chaperoning the corporation-tax amendment and the income-tax amendment to the Const i tution is thus stated with brutal frankness. When hemmed in _ and confronted by the dreaded alternative of being forced to yield to the immediate enactment of an income-tax law, or by contriving and offering an exceedingly mild substi ­ tute, and pretending to lend it support, thereby crippling and defeating the income - tax amendment, the wily leaders hesitated not, but pursued the latter alternative. The plan has thus far worked admirably; the income-tax forces in this particular · body were thereby dissipated, and, so far as this session of Congress i s concerned, the income tax now sleeps in its · grave.

l\Ir. Speaker, there is, and has been, no division of opinion among the friends and supporters of this method of taxation as to the wisest course · to pursue to secure its adoption . . In com ­ mon with the sentiment of the .American people and the great· weight of opinion of the legal profession throughout the country, its friends in Congress unalterably believe that the decision of the Supreme Court rendered · in the Pollock case in 1895, pronouncing the · income - tax law unconstitutional for lack of apportionment, is clearly unsound, and in justice to the country and to the Supreme Court itself ought not to stand as the law of the land . Meaning no disrespect to the high tribunal rendering it, I avow that this . s decision has not met the app r oval of, nor been acquiesced in as sound law by, any considerable number of either the American bar or the American people. This decision presents one of the very rare instances in the Nation's judicial history in which it is well-nigh universally agreed that the greatest judicial tribunal on earth erred. Fortunately our judicial annals disclose a few precedents wherein this high and distinguished tribunal, at no time claiming to be infallible, has con - · fessed1y fallen into error, but later reconsidered its former action and reversed its erroneous decisions. This · commendable practice of cheerfully correcting their own errors, though few they be, is likewise followed by all courts of lasrresort in every civilized nation of the world. And why not? · . · . · While I shall cheerfully vote to submit to the States the proposed income-tax amendment to the Constitution, · as I would vote to take any step in the direction of securing au income tax, keenly aware, as I am, that certain Republican leaders have brought it before Congress at this time as the best available means of delaying and if possible finally defeating. tiie enactment of any income-tax law, yet I am unalterably of opinion that the abandonment IJy Congress of its pres en t opportunity to enact a new income-tax law and thereby give the Supreme Court a chance, and the only chance it will probably ever have, to reconsider, review, and, · if deemed proper, , to reverse its former decision in so far as it affected the power of Congress to impose a comprehensive income tax, is neither the best, the quickest, nor the wisest course to pursue. Congress having heretofore pursued a policy of nonaction with respect to this decision of the court, it can be truthfully said that Congress has in no sense acquiesced in or ratified that decision. But if Congress now . fails and refuses to take such steps as would result in securing a reconsideration by the court of its former decision, thereby giving the court an opportunity to reverse the same if now deemed unsound, but instead pursues the course of proposing the pending constitutional amendment to t he States, its action in so doing will be construed by many as an acquiescence in, an acceptance, and a ratification of the court's former decision, which every good lawyer in and out of Congress agrees is erroneous and unsound .

NO INDORSEMENT OF COURT DECISION.

.!Ur. Speaker, I shn.11 vote for the proposed amendment, but with the distinct understanding that I in no wise abandon my con v iction that the decision in the Pollock case was wrong and that l do not waive or prejudice my right under the Consti tution as a Member of this House to hereafter vote to enact such an income-tax law as will result in a reconsideration by the Supreme Court of each of these controverted questions. _ While I thus speak only for myself, I believe this view but reflect s the judgment of virtually every sincere supporter of the doctrine of an income tax in Congress.

POWERS A..~D DUTIES OF MEMBERS OF COORDINATE BRANCHES.

Mr. Speaker, this brings me to a brief consideration of the powers and duties of members of coordinate branches of the Government in connection with the discharge of their respective functions. Every member of each coordinate department of the · Go>ernment acts under the obligation of an oath of fidelity to the Constitution . It delegated to Congress certain specified powers . It is true that if in the execution of its powers Congress should adopt measures which are prohibited by the Constitution, it is within the province of the Supreme Court to say that such an act was not the law of the land. While it is the unquestioned duty of the citizen to yield obedience to the . operation of a Supreme Court decision, yet the broad and well-defined distinction between this duty of the citizen and . the right and duty of a member of a coordinate branch of the Go · rnrninent when acting in a legislati v, e capacity has been con ceded and recognized by the ablest legal minds from the beginning of the Government. This doctrine is well expressed by a not e d author in his Constitutional History of the United States, George Ticknor Curtis, volume 2, page 69, . as follows:

It may well be that every official who takes an oath to support the Constitution is bound to interpret it as he understands it; and especially is this true of both branches of the legislative power, one of which is the two Houses of Congress, and the other of which is the Pre s ident. To both of them a decision of the Supreme Court of the United States on a constitutional question commends itself by the weight of its reasoning; but when the same question arises in the course of legislation, those who exercise the functions of legislation must determine for themselves whether they will or will not follow out the views maintained by the court. What the court really decides . is that, in a litigated case, the parties whose rights against each other are effected by a provision of the Constitution are bound to accept the interpretation of the Constitution which the court adopts. The decision also becomes a precedent in all future litigated cases in which the same question arises, and all inferior judicial tribunals, federal or state, are bound by it.

President Jackson, in his celebrated veto of the bill to con.­ tin ue in force the · charter of the Bank of the United States, used the following language :

Each public officer, who takes an oath to support the Constitution, swears to support it as he understands it, and not as it is understood by others. It is as much the duty of the House of Representatives, of the Senate, and of the President to decide upon the constitution­ ment." ality of any bill or resolution which may be presented to them for passage or approval as it is of the Supreme Judges when it may be brought before them for judicial decision. * * * The authority of the Supreme Court must not therefore be vermitted to control the Congress or the Executive, when acting in their legislative capacity, but to have only such influence as the force of their reasoning may deserve. In his Constitutional History, volume 2, page 70, we find the following opinion of the author, Mr. Curtis, with respect to the power of · the President in dealing with new legislation:

In general, the President, when called upon to approve of new legislation which undertakes to exercise a supposed power of the Constitution, must interpret the Constitution as an independent duty, and must decide for himself whether the power exist s .

That . great expounder of the Constitution, Daniel Webster, . we have upon the best authority, concurred in this view. In volume 1, page 419, of the Life of Webster, written by Curtis, one of his literary executors, the author makes the following statement:

Mr. Webster never denied that the President, when called upon to decide whether a law is to be enacted, may apply his own judgment to the question whether it is within the scope of the Constitution, although all other branches of the Government have repeatedly decided that similar laws are constitutional. * * * In his view, the Supreme Court was created for the express purpose of acting as the official interpreter of the Constitution; yet he did not deny that when a law is proposed to be enacted all who are to perform a part in that enactment must jud g e of its constitutional validity for the purpose of governing their le g islative action.

1\-Ir. Speaker, this view, expressed as it was in discus s ing Jackson's national-bank veto, applies with equal force to the legislative branch of the government. Thomas H. Benton, in his Thirty Y e ars in the United States Senate, heartily approved this doctrine and cited numerous authorities in support thereof. It would add no strength to this contention to call attention to the statement of Mr. Blaine, in · his Twenty Years in Congress, Volume I, page 137, to the effect that after Mr. Lincoln became President a certain decision of the Supreme Court received no respect, and that it, together with others subsequently rendered, "were utterly disregarded by the President without reversal by the court." Neither would any light be shed upon this question by detailing the vigorous manner in which the legislatures of Virginia and Kentucky, in th~ famous "Resolutions" of 1798, combated and denounced the alien and sedition acts as a gross violation of the Constitution of the United States. Nor would a statement of the action of South Carolina, in so stoutly resisting the enforcement of the tariff law in the thirties, upon the ground that it was unconstitutional, illuminate our present inquiry . The proceedings of what is known as the "Hartford convention,” in 1814 involved the same questions, now happily obsolete . The early history of our country, and the civil war period as well, affords numerous instances of attack made by citizens and by States also not only upon the official actions of the Supreme Court, but upon the personnel of that tribunal. ONLY SOUND DECISIONS CAN SUSTAIN A COURT'S DIGNITY AND STANDING.

l\1r. Speaker, the great bulwark behind which the Supreme Court has always securely rested, as indeed must be h·ue of every public functionary, has been the justness, the impartiality, and the soundness of its decisions. No earthly tribunal has ever yet reached a position so exalted as to be beyond the reach of the shafts of honest and legitimate criticism when in error. So long as the American people love liberty, justice, and equality, just so long may they be relied upon to promptly and vigorously exhaust every legitimate effort to exact from their public servants this degree of rightful recognition, and little patience will be shown those who undertake to impede such effort by declaring that a Supreme Court decision, however erroneous, is sacred and must be acquiesced in and accepted by all the sufferers of its injustice without even respectfully asking its authors to correct their own wrong .

The weight of authority respecting the duty of a member of a coordinate department of the Government to construe the Constitution as he believes to be right is so clear and so strongly supported by reason as well as by sound public policy, I deem it unnecessary to pursue this inquiry further. _

The opponents of an income tax, and, indeed, some of its pretended friends, affect great concern for the dignity of the Supreme Court and the sanctity of its decisions whenever it is suggested that Congress take such action as would secure a reconsideration by that court of a confessedly unsound decision. It is brazenly argued that such step would be indelicate, a breach of propriety, a dangerous precedent, a reflection upon and a rebuke to the court. By inference the authorities I have already cited refute and destroy this suggestion, which at best should be characterized as an impractical absurdity . I desire, however, to cite some utterances of the court itself upon this point, which not only render this objection silly and ridiculous, but thoroughly explode and demolish it as a so-called " argu­

LEGAL SOPHISTRY RUN MAD.

In this connection I recently heard a grave gentleman, classed by his friends as the head of the American bar, announce in another Chamber, with mock solemnity, the startling -view that, while it would be right and proper for an ordinary suitor to ask the Supreme Court to recon s ider a judgment believed to be unsound, it would result in a serious, undeserved, and unjustifiable injury to the judiciary if 90,000,000 citizens, or suitors, through their Representatives in Congress, should ask this august tribunal to reconsider a 5-to-4 decision, the correctness of which most all persons question.

THE COURT'S READINESS TO CORRECT ERRORS.

Mr. Speaker, in 1869 the Supreme Court of the United States, by a vote of 5 to 3, rendered its first decision in what is known as the "Legal Tender" cases, the case being styled " Hepburn v . Griswold,” and reported in Eighth Wallace, G_.z6. This decision held the legal - tender acts of Congress making . +.reasury notes a legal tender in the payment of preexisting private debts un· constitutional . At this time the membership of the court com· prised eight judges. Soon thereafter Justice Strong was appointed to fill a vacancy caused by the resignation of Justice Grier, and Justice Bradley was appointed under an act of Congress providing for an additional judge after the first Monday of December, 1869.

After these changes in ° the membership of the court had occurred, the Attorney-General of the United States appeared before the court and made a motion that fue questions previouslY, _ decided adversely to the Government be reargued and reconsidered by the court . This motion was allowed, a reconsid e ration was had, and in December, 1870, a second decision of 5 to 4 was handed down by this court reversing the former one and holding the legal-ten<ler acts in all re pects constitutional, and this latter decision stands undisturbed and unquestioned as the law of the land until this day .

Justice Strong delivered the majority opinion, and in the course of which, doubtless having in mind the arising of similar conditions in the future, commented upon the action of the court in reconsidering its previous action and reversing the same in the following language:

The questions involved are constitutional questions of the most vital importance to the Government and to the public at large. We have been in the habit of treating cases involving a consideration of constitutional power differently from those which concern merely private right. We are not accustomed to hear them in the absence of a full court, if it can be avoided. Even in cases involving only private rights, if convinced we have made a mistake, we would hear another argument and correct our error. And it is no unprecedented thing in courts of last resort. both in this country and in England, to overrule decisions previously made. We agree this should not be done inconsiderately, but in a case of such far-reaching consequences as the present, thoroughly convinced as we are that Congress has not transgressed its powers, we regard it as our duty so to decide.

Justice Strong also suggested in this·connection (12 Wall., 554) that the former decision was rendered by a divided court. This plain announcement of the Supreme Court itself with respect to the course it always - desires to pursue with reference to an error it has committed ought to be sufficient to forever silence the busy tongues of the self-styled defenders of the dignity of thE! Supreme Court in connection with this income-tax controversy. But Justice Bradley. who also delivered an opinion in this case , concurring in the majority opinion, gave utterance to the following doctrine, which, in the light of the present income-tax controversy, sounds like prophecy: ·

I can not consent that the Government should be deprived of one of its just powers by a decision made at the time and under the circumstances in which that decision was made. On a question relating to the power of the Government, where I am perfectly satisfied that it has the power, I can never consent to abide by a decision denying it, unless made with reasonable unanimity and acquiesced in by tlle country. Where the decision is recent, and is only made by a bare majority of the court, and during a time of public excitement on the subject, when the question has largely entered into the political discussions of the day, I consider it our right and duty to subject it to a further examination, if a majority of the court are dissatisfied with the former decision. And in this case, with all deference and respect for the former judgment of the court, I am so fully convinced that it was erroneous and prejudicial to the rights, interests, and safety of the General Government that I for one have no hesitation in reviewing and overruling it. (12 Wallace, 569, 570.)

Mr. Speaker, this view of the court is strikingly applicable to the decision in the Pollock case. It contains the clear ring of honest candor, an earnest willingness to promptly rectify . _ every error committed, and an eager desire to maintain that lofty standard of judicial learning and fairness established by Jay and Marshall and Taney and others of the early judges, whose ripe scholarship and high legal attainments shed imperishable luster upon the judiciary of the Nation. Did the court in 1870, when a coordinate department . of the Government, through the Attorney-General, asked for a reconsideration of one of its decisions, feel itself rebuked, its dignity lowered. or its Wgh standing impaired? On the contrary, it ga-ve the application respectful consideration, and in correcting its former error took occasion to announce through two members of the court that it was not only the right but the duty of the court to thus correct its mistakes. To this same . effect had the Attorney-General of the United States previously argued in support of Ws application for a reconsideration.

WHO ASSAILED THE COURT'S DECISION FOR A CENTURY? 1

It may be pertinent here to remind the House that since the decision in the Hylton case in 1796, wherein the Supreme Court expressly held that under the Constitution there were no direct taxes subject to the rule of apportionment save a capitation tax and a tax on land, five determined efforts have been made to induce the court to reverse this decision, and not until the opinion in the Pollock case did these efforts succeed. The distinguished head of the American bar must have been inwardly amused when he, with apparent seriousness, suggested that the decision in the Pollock case would now be supported by the doctrine of stare decisis.

Those who have clamored for a reversal of the Hylton case have always combated the doctrine of stare decisis, and by none was it more severely criticised than by counsel who assailed the income tax during the hearing of the Pollock case. It now ill becomes the opponents of an income tax to invoke this doctrine in support of the decision in the Pollock case, which was wrung from the Supreme Court in spite of the great force of this doctrine. The following ringing appeal for its observance was made by Mr. Justice Brown, dissenting in the.Pollock case: If there be any weight at all to be given to the doctrine of stare decisis, it surely ought to apply to a theory of constitutional construction which has received the deliberate sanction of this court in five cases, and upon the faith of which Congress has enacted two income taxes, at times when, in its judgment, extraordinary sources of revenue l were to be made available. (158 U. S., 289.)

But it fell upon either deaf or unwilling ears. Mr. Justice White, in each of his dissenting opinions in the Pollock case, among other things, said that the decision in the Hylton caseHad been accepted by the legislative and executive branches: of the Government from that time to this, and that this acceptance had been manifested by conforming all taxes thereafter imposed to the rule of taxation thus established. (158 U. S., 710.)

Mr. Speaker. I take it that no court would prefer to see a patent error written into the Constitution and become a part of the law of the land rather than reconsider and rectify that error. Yet I recently heard a great lawyer assert in this Capitol that in Ws opinion the majority decision in the Pollock case was wrong, but that Congress should, nevertheless, in effect acquiesce, ratify, and accept it as good law and seek to recover its lost taxing power, thereby taken away, by the exceedingly - difficult method of amending the Constitution. This worse than inconsistent view can only be harmonized with his reputation as a lawyer upon the theory that he · is a determined foe of the income tax.

THE WISER COURSE TO PURSUE.

My position is and has been that since some 35 state legislatures will not again convene until 1911, this session of Congress should have enacted a comprehensive income-tax law and s.ecured the judgment of the Supreme Court upon it at an early date. as was done in 1895, and, if unfavorable, next winter's · session of Congress could submit the pending amendment without hazarding any greater delay in securing its ratification by the States than its present submission incurs. This course would have enabled Congress to utilize both remedies without prejudice to either. At least neither remedy should be abandoned, though both might properly be invoked at the same time.

I hope at a later day to attempt an extended discussion of the merits of this method of ta · taxation. .

HIS'.l'ORY OF ilIENDMENTS-NUMEROUS QUESTIONS ARISING.

1\fr. Speaker, I now turn to another phase of the proposed constitutional amendment now before the House.

Under Article V of the Constitution two-thirds of both Houses of Congress may propose amendments, or the legislatures of two-thirds of the States may apply · to have a convention of all the States called for the proposing of amendments, in which case Congress must make the call; when proposed by either form, the amendment may be ratified by the legislatures of three-fourths of the States, or by conventions in the same, as Congress may direct when the amendments are proposed. Since the beginning of the Government approximately 1,500 resolutions, containing 2,000 amendments to the Constitution, have been introduced in one or both branches of Congress. Of this great number only 19 amendments have succeeded in securing the requisite two-thirds vote and gone to the States for their ratification. Of this latter number only 15 have been ratified by the States and become parts of the Constitution. James Madison, the author of Article V, authorizing amendments to the Constitution, was also the author of the first 10 amendments to that instrument, known as the " Bill of Rights." He also offered in Congress two additional amendments, which in turn were submitted by Congress to the States. One of these pertained to the apportionment of Representati-ves, and the other to the compensation of Members of Congress, both . of which failed of ratification by the States.

ELEVE 'TH AND TWELFTH AMENDMENTS.

Soon after the ratification of the Constitution the Supreme Court held that a State could be sued ill the federal court by a citizen of another State; this provoked great indignation, especially among the States heavily in debt, as a result of which a movement was immediately started to amend the Constitution. Accordingly, the outgrowth of amendments proposed in Congress was the adoption of the eleventh amendment a little later . . It is interesting to observe here that this amendment was assailed because of the failure of the President to sign it, and the Supreme Court, in Third Dallas, 378, decided that the President "has nothing to do with the proposition or adoption of amendments to the Constitution." Notwithstanding this decision, Congress has since discussed the matter often. In 1861 President Buchanan signed an amendment proposed to the States by Congress. President Lincoln signed the thirteenth amendment, whereupon the Senate passed a resolution to · the effect that his signature was unnecessary. John Quincy Adams announced the view that the President should not recommend amendments to Congress, since he had no share in their adoption, but this view has not been generally accepted by other Presidents, either before or since.

The long controversy before Congress between Jefferson and Burr for the Presidency suggested the immediate necessity for another amendment to the Constitution. Accordingly, after numerous attempts, Congress . ss submitted to the States what was afterwards known as the " twelfth amendment," which was soon ratified. The Federalists opposed it in Congress, raising the question that it had not received the vote of two-thirds of the memb e rship of the Senate, but only two-thirds of those present. Preced e nts were cited by its supporters showing that some of the fir s t ten amendments were proposed to the States by a vote of two-thirds of the :Members present only. This amendment became a part of the Constitution in 1804. .

In 1810 Congress proposed to the States an amendment prohibiting anyone from accepting a title of nobility, a present, or an office from any foreign government, without the consent of Congress; but this a m endment failed of ratification . by one vote. In 1861 what is known as the "Corwin amendment," relating to the interference with slavery within any State, was proposed to the States by Congress. It was in the nature of a compromise, but, some of the States having already seceded, nothing came of the matter. Early in 1865 the thirteenth amendment, abolishing slavery, was proposed to the States by Congress, but not until after a heated struggle extending over many months. It be c ame a part of the Constitution in December of that year.

PE C ULIAR HISTORY OF FOURTEENTH A M EN DMENT.

. 1\Ir. Speak e r, very soon thereafter amendments were proposed in Congress looking to the adoption of what was afterwards known as the " fourteenth amendment," with the result that, according to the version of some, the fourteenth amendment was duly ratified and be c ame a part of the Constitution in July, 1868. Some singul a r circumst a nces attended the alleged adoption of this amendment. While the sole function of Congress with respect to amendments is to propose to the States such amendments as two-thirds of both Houses see fit, 'to be ratified or rejected, either by state legislatures or conventions, yet Congress in this instance did not permit all the States to so act upon this proposed amendment. What is known as the "reconstruction acts" were in operation in 10 States, though President Johnson had held them unconstitutional, while a hurried act of Congress intercepted and prevented a consideration by the Supreme Court of the constitutional validity of these acts. Under these acts existing state governments were abolished and new governments, created by a convention of delegates made up largely of negroes, were substituted. Under this regime if a state government was about to reject the proposed amendment it was promptly deposed and one of those new governments at once installed, whose action would insure immediate ratification. This course seems to have been at direct variance with the constitutional provision, which directs that only "legislatures " or " conventions" in the States are given authority to ratify or reject amendments proposed by Congress . Congress can only direct as to whether a State shall act on an amendment by its legislature or a convention, and with this the power of Congress terminates. Lincoln's great Secretary of State, William H. Seward, was an exceedingly able lawyer ; he had rem a ined in this official position under President Johnson's administr a tion. The act of Congress of 1818 made it the · official duty of the Secretary of State to certify whether an amendment has bec o me a part of the Constitution by being duly ratified by the States. Secretary Seward issued two proclamations with reference to the ratification of this amendment, instead of the usual one. When he issued the first proclamation, his legal knowledge and sense of justice did not permit him to recite therein that this amendment had been duly ratified by threefourths of the States, but, instead, this proclamation declared that the am e ndment had been ratified' by the legislatures of certain States-naming them-and that in six States it had been ratifi e d "by newly constituted and established bodies avowing themselves to be and acting as the legislatures, respectively . "

In other words, they were ratified by de facto legislatures. Another unu s ual recital in the procl a mation grew out of the fact that Ohio and New Jersey, after having ratified the amendment and before the requisite three-fourths of the States had done likewise, withdrew their ratification, his proclamation hypo t hetically reciting • that if Ohio and New Jersey had no ri g ht to withdraw their ratification, the amendment was duly ratified by the requisite number of States. Secretary Seward was evidently strongly impressed with the view that a state legislature had the right to withdraw a ratification previously made at any time before an amendment's due ratification by three-fourths of the States; otherwise, as to this qualification he would have unhesitatingly issued the usual proclamation Then it was that John Sherman, of Ohio, introduced in the Senate a concurrent resolution declaring the ratification sufficient, which passed both Houses of Congress, and the Secretary of State thereupon issued a second proclamation declaring the ' amendment duly ratified. The steps attending the ratification of what i s known as the" war amendments" were so arbitrary, irregular , and unusual as not to be considered reliable precedents to follow in amending the Constitution.

WHEN AN AMENDMENT BECOMES A PART OF T'HE CO::-iSTITUTION.

It must be conceded that the moment three-fourths of the States duly ratify an amendment it becomes a part of the Constitution, the proclamation of the Secretary of State being a mere ministerial act. Hence it follows that Congress has no power in the premises after it has once proposed an amendment to the States as the Constitution provides, not even of recalling the amendment; therefore the passage of any re s olution by Congress declaring that a given amendment has or has not been duly ratified by the States, such as was done with respect to the fourteenth amendment, is ultra vires and void.

While it is an unsettled question, the weight of authority and reason is that the Constitution contemplated that a state legis ­ lature has the undoubted right to withdraw a r a tification pre v i­ ously made at any time before an amendment is ratified by three-fourths of the States .

In 1869 Congress proposed the fifteenth amendment to the States, after a lengthy discussion, and it became a part of the Constitution early in 1870.

IMPEDIMENTS TO AMENDMENT •

Mr. Speaker, from this brief resume of the course of the 19 amendments that have been submitted to the States by Congress since the beginning of the Government, not to mention the . other 2,000 proposed amendments that failed to pass through Congress, it will be seen that many impediments to amendment exist. According to the census of 1890, it has been computed that 11 States, with a population of 2,344,115, or 3.7 per cent of the total population of more than 60,000,000 people, can defeat an amendment. (Ames on Constitution, p . 304.) Also that, according to the figures of the election of 1876, the legislatures elected by 282,230 voters could defeat an amendment that might be supported by 8,123,559 voters, or more than 96 per cent. (See H . Rept. 819, 45th Cong., 2d sess.) Save in one instance, wherein Illinois ratified the thirteenth amendment by a convention, contrary to the method prescribed by Congress, no State has ever attempted to ratify an amend· ment except through its legislature, though many attempts have been made to induce Congress to direct the convention method . Numerous controversies have arisen over the question as to whether the governors of States should sign the resolution of amendment when ratified by the legislatures, governors having assumed to do so in several instances. . It is evident that the governor has no authority or voice in the matter .

Many efforts have been made in . Congress to direct that " a proposed amendment should be brought before legislatures hereafter elected for ratification," and that when once ratified there shall be no reconsideration; also providing that a ratification should not be valid unless within a certain prescribed time; but each proposition failed . In this connection it may be observed that Tennessee inserted a provision in its last con ­ stitution to the effect that-

No convention or general assembly of this Stat e shall act upon any amendment of the Constitution of the Unit e d States proposed by C o n­ gress to the several States unless such convention or g e n e ral ass e mbly shall have been elected after such amendment is submitted . (Cons t . of 1870, Art. II, sec . 32 . )