The Revolution of 20th May, 1895. 
 
 HENRY H. I NGERSOLL. 
 
 Read before Tennessee Bar Association, July 19, 1895. 
 
Avery Architectural and Fine Arts Library 
 Gift of Seymour B. Durst Old York Library 
 
THE REVOLUTION OF 20TH MAY, 1895. 
 
 HENRY H. INGERSOLL. 
 
 Read before Tennessee Bar Association, July, 1895. 
 
 Professional duty called me before the Supreme Court of 
 the United States on Monday, 20th May, 1895, and I saw and 
 heard the Revolution. 
 
 It was a day of eager expectation at the national capital ; 
 Dives stood on tiptoe, but not at the door of the House of 
 Representatives nor of the Senate Chamber, nor yet of the 
 White House. Workmen were cleaning and renovating the 
 walls and floors of the "Cave of the Winds," and hammer 
 and trowel had evicted bluster and buncombe. Silver 
 Stewart's speech had stopped, and to the "Chamber of Pluto- 
 cracy" silence, like a poultice, came to heal the blows of 
 sound. Only patriotic tourists in pairs and squads, now 
 haunted the halls of legislation. Office-seekers and lobbyists, 
 Congressmen, and Senators, all were gone — the memorable 
 Fifty-third Congress had been adjourned for more than two 
 months. Some to the setting sun had gone, and some to the 
 rising moon; a majority had been invited to remain at home. 
 Around the White House, too, a cemeterial quiet reigned. 
 Its occupants had gone fishing or to the country. Legislative 
 feet no longer hurried up executive staircases in discharge of 
 sworn official duty. The Palace of Patronage was closed for 
 the season. 
 
 But the Supreme Court was still in session. This was 
 opinion day; and to-day contention' would be resolved into 
 decision. A great case had been argued before the court in 
 the Ides of March, involving momentous issues to the public, 
 upon which the eight justices who heard the argument were 
 equally divided in opinion and could, therefore, give no de- 
 cision on vital questions involved. A rehearing had been 
 ordered; the absent justice had come up to court; the case 
 
—2— 
 
 had been reargued; the question was, whether Dives must of 
 his crescent millions, contribute to the necessary expenses 
 of the Federal government, as Plebs demanded. At the first 
 hearing the Nestor of the bench had said of the law under 
 consideration: "The present assault upon capital is but the 
 beginning; it will be but the stepping stone to others larger 
 and more sweeping, till our political contests will become a 
 war of the poor against the rich, a war constantly growing 
 in intensity and bitterness. If the court sanctions the power 
 of discriminating taxation and nullifies the uniformity man- 
 date of the constitution, it will mark the hour when the sure 
 decadence of our present government will commence." 
 
 Dives' ducats were in peril; he had been assaulted; his 
 person, perhaps his life, was in jeopardy; Plebs was pugna- 
 cious; great fortunes were involved; vested rights and in- 
 vested wealth were surely in danger, and also the perpetuity 
 of the government, as Dives thought; the balance was tremb 
 ling. Therefore, Dives stood on tiptoe. 
 
 Plebs, too, awaited the result with ja sort of sullen 
 anxiety. To him it seemed an issue between capital and 
 labor, between earnings and spendings, between income and 
 outgo. As he viewed the question, it was, whether consump- 
 tion should pay all the taxes of the Federal government, 
 tariff and excise; or investment and speculation out of their 
 increment of profits and gains, should bear their fair share of 
 public burdens, but the newspapers, anticipating the judi- 
 ciary, had days before, assumed to announce the opinion of 
 the court adverse to Plebs. So though doubtful of the 
 prophetic power of the reporter, and indignant at his con- 
 ceited assumption, Plebs had little hope for a favorable result. 
 
 Twelve o'clock was the hour for court to convene, and 
 usually the court room was opened an hour earlier. But two 
 hours before noon persons could be seen standing at the 
 door awaiting admission, prominent among whom were the 
 ancient spinster and the veteran loafers of the capital city, 
 the left-overs of humanity, marital and official; while inside 
 the clerk's office gathered the venerable, briefless barristers, 
 eager to exercise their sitting right inside the bar of court, and 
 reminiscent of the lawyers, judges and court scenes of the 
 days before the Civil War. Before 11 o'clock the corridor 
 
—3— 
 
 had become obstructed by the anxious crowd, and the capital 
 police had ordered them into a single line, stretching far 
 back through the cripts and corridors, even to the floor of 
 the great dome itself. It was a motley file, of all sizes, ages, 
 sexes, and conditions — tall and short, fat and spare, male, 
 female, and the new woman ; spick and span, and shabby gen- 
 teel, white black and yellow; uniform only in an apparently su- 
 perior intelligence. 
 
 The hour for opening approaches, arrives, passes; and 
 for a full half hour the lengthening line awaits, with impa- 
 tience the pull of the colored janitor. At length the door is 
 opened, the file moves in, dividing to the right and left, and 
 quickly filling the benches in the spectators' circle on both 
 sides the court room. The number of chairs inside the bar for 
 counsel of court had been doubled, and extra seats for favored 
 visitors placed in all the vacant spaces of the little court 
 room. All these seats are quickly taken; and a new woman, 
 entering by a side door, plies the obstructing marshal with 
 such irresistible vocality that he not only gives way for her 
 to plant herself upon the platform behind the bench, but 
 even provides a chair for her well-won sitting beside the 
 court. 
 
 Newcomers throng the entrance, fill the vacancies be- 
 tween benches and chairs, and along the walls and bar, and 
 crowd to repletion even the low floor space from the bar 
 back to the door, and out into the corridor. Every foot of 
 space on the floor is utilized, even between the bar and the 
 bench, where the newspaper reporters and stenographers have 
 gathered, with pen and notebook. The Attorney-General and 
 his assistants, including our honored ex-President Dickinson, 
 occupy the front chairs at the bar table, and close beside sits 
 the venerable, but vigorous James C. Carter, leader of the 
 New York bar, who had been associated as counsel for the 
 government in this case. Having done their duty well, they 
 have come to judgment, "with a heart for any fate." The 
 opposing counsel, whether confident of success, indifferent 
 to results, or satined with the newspaper prediction, do not 
 put in their appearance. Among the lawyers are seated Hon. 
 Edward J. Phelps, and Belva Lockwood, too, and distinguished 
 Senators and members of Congress of diverse views and rec- 
 
__4- 
 
 ords upon this all-absorbing legislation. From the senii-cir- 
 cular wall of the little court room the portraits of the departed 
 Chief Justices, from Jay to Waite, look down upon the 
 crowded court room and the vacant bench with calm and 
 fixed indifference, while the outstretched wings of the gilded 
 eagle from the opposite wall hover over the seat of justice. 
 The low buzz of conversation from a hundred voices fills 
 the few remaining minutes of expectation. Let us review 
 and summarize: 
 
 One Charles Pollock, a Massachusetts stockholder, had 
 filed his bill in the Circuit Court of the United States at New 
 York against the Farmers' Loan and Trust Company to en- 
 join its officers from making an income tax return and from 
 paying the tax, upon the ground that the act of Congress 
 levying it was unconstitutional, null and void; and a similar 
 bill had been filed by one Hyde against the Continental Trust 
 Company, of the city of New York, for the same purpose. 
 New York counsel had brought the suit, and thus the Boston 
 bar was behind and the Philadelphia lawyers were left. These 
 two bills had been dismissed on demurrer, and on appeal 
 to the Supreme Court advanced and heard together by eight 
 Justices only. The contention was: 
 
 1. That the tax on income from rents and interest and 
 dividends was a direct tax without apportionment, and there- 
 fore contra-constitutional. 
 
 2. That the income tax was not uniform, and was, there- 
 fore, void. 
 
 3. That the Federal tax upon income from State and 
 municipal bonds was likewise null and void. 
 
 At the first decision all the Justices had concurred in 
 holding "that the United States had no power under the 
 constitution to tax either the instrumentalities or the prop- 
 erty of a State, and therefore the tax upon income from State 
 and municipal bonds was unconstitutional." 
 
 A majority of the eight Justices sitting had concurred 
 in the opinion "that the law in question, so far as it levies a 
 tax on the rents or income of real estate is in violation of 
 the constitution, and is void." 
 
 Upon each of the other questions argued at the bar, to 
 wit: (1) whether the void provisions as to rents and income 
 
— o — 
 
 from real estate invalidated the whole act? (2) whether, as 
 to the income from personal property as such, the act is un- 
 constitutional as laying direct taxes? (3) whether any part 
 of the tax is invalid for want of uniformity? 
 
 The Justices who heard the argument were equally 
 divided, and therefore, no opinion was expressed. 
 
 To the opinion of the court, delivered by the Chief Jus- 
 tice, there were three dissenting opinions, one by the Senior 
 Justice, that staunch old Democrat, Stephen J. Field, of a New 
 England family whose members have achieved a world renown 
 in their varied vocations — on the bench, at the bar, in the pul- 
 pit and in business — attaining distinctnion among their 
 fellows for creative intelligence, strength of intellect, tenacity 
 of will, and success in achievements which have enured to 
 the lasting benefit, not only of their countrymen, but the 
 whole human race. He had commented upon various feat- 
 ures of the law with unsparing severity, denouncing especially 
 the exemption of $4,000 as a purely arbitrary limitation, 
 subject to the whim of future Congresses and likely to be 
 fixed hereafter "at such an amount as a board of 'walking 
 delegates' may deem necessary." He had also denounced the 
 tax upon judicial salaries as in defiance of the very letter 
 of the constitution, which declares that their compensation 
 "shall not be diminished during their continuance in office." 
 He was, therefore, of opinion "that the whole law of 1894 
 should be declared void and without binding force." Upon 
 the contrary, the Junior Justice, White, of Louisiana, former 
 soldier of the Confederacy, felt bound to record an elaborate 
 and vigorous dissent, because the result of the opinion was 
 "to overthrow a long and consistent line of decisions and to 
 deny to the legislative department of the government the 
 possession of a power conceded to it by universal consensus 
 for a hundred years, recognized by repeated adjudication of 
 the court, and necessary to the maintenance of national au- 
 thority." With him, stood Mr. Justice Harlan, in holding 
 that the tax upon rents, as well as upon interest and divi- 
 dends, was valid. The other four members of the court 
 maintained a judicial silence. It was published and generally 
 understood, that Justices Gray and Brewer stood with the 
 Chief Justice, and Justices Brown and Shiras upon the other 
 
—6— 
 
 side. The unknown quantity in this great judicial problem 
 was Justice Jackson, of Tennessee, who had been absent at 
 the hearing and decision. And from the time when he had 
 informed the court of his intention to be present, whenever 
 reargument should be ordered, down to the very hour of 
 final decision, speculation and conjecture had wearied them 
 selves with tracing family history, social influence, natural 
 bias and judicial record in the vain effort at foretelling on 
 which side of the scales would be placed the casting vote that 
 should break the balance of the tie; and some said it was a 
 pity that the destiny of the country should depend upon the 
 single judgment of one man, and he an invalid. 
 
 An Argus-eyed reporter, however, whose sleepless vigi- 
 lance during the fortnight following the rehearing no mem- 
 ber of the court had for a moment escaped, had assured the 
 world that no such momentous power rested with this vale- 
 tudinarian; there remained no public problem for him to 
 solve, no public tie to break; think as he pleased, decide as 
 he might, the question was already settled, the tie already 
 broken; one of the judges, exercising judicial prerogative, had 
 changed his mind, and that on the 20th of May, the Chief 
 Justice and Justices Field, Gray, Brewer, and Shiras would 
 concur in declaring the entire income tax law unconstitu- 
 tional, null and void. 
 
 Thus stood the case and the reports thereon, when, 
 promptly at the hour of noon, the voice of the dapper little 
 marshal proclaimed to expectant ears the welcome words, 
 "The Chief Justice and the Associate Justices of the United 
 States;" and all eyes turned to the low door on the left, 
 through which, in silken robes, filed the nine mortals who 
 constitute the "most august tribunal upon the earth;" and 
 assuming their several places — Justices Field, Gray, Brown, 
 and Jackson on the Chief Justice's right, and Justices Harlan, 
 Brewer, Shiras, and White upon his left — they stood for a 
 moment, while the crier proclaimed, "Hear ye, hear ye, hear 
 ye, this honorable Supreme Court of the United States is now 
 in session. All persons having business with the court draw 
 near and give attention, and they shall be heard. God save 
 the United States and this honorable court." Then with the 
 dignified courtesy always observed therein, and so eminently 
 
— 7 — 
 
 becoming the occasion, -the place, and the tribunal, the Jus- 
 tices bowed to the bar and the bar bowed to the court, all 
 were seated, and this matter of great pith and moment, the 
 pregnant business of the hour, hastened to its catastrophe. 
 
 As soon as the Chief Justice leaned forward and began, 
 without preliminary remark, the rapid and distinct reading 
 of an opinion in cases Nos. 893 and 894, all experts knew 
 that newspaper predictions would be verified and the income 
 tax declared unconstitutional. Yet the audience listened in 
 an almost breathless silence to the low, distinct, and pleasant 
 voice of the Chief Justice denouncing its invalidity. As he 
 bent forward over the bench the great shock of white hair 
 parted in the middle, and falling forward on either side nearly 
 obscured his handsome, clear-cut features, and his eyes, riv- 
 ited upon the manuscrifrt, were raised but once or twice to 
 the audience during the three-fourths of an hour occupied 
 in reading the opinion. While he read, the other Justices 
 settled themselves comfortably in their great leathern chairs, 
 Justice White throwing back his head and raising his face, 
 with eyes lightly closed, up to the panelled ceiling. Behind 
 the Justices' chairs, and almost against the rich, red curtain 
 that forms the background to the bench, stood a half dozen 
 little pages, silent and attentive, while overhead the gilded 
 eagle spread his wings over the court. Once during the read- 
 ing of the opinion, when Mr. Justice Harlan, leaving 
 his seat, was passing around behind the big red curtain, Mr. 
 Justice White, opening his eyes, caught eagerly at the gown 
 of the retiring Justice and arrested him for a moment. But 
 a hurried conversation seemed to satisfy his anxiety and he 
 relapsed into his former position. The audience gave rapt 
 attention to the reading of the opinion, full of learning, cita- 
 tions and quotations, argument, distinctions and ratiocina- 
 tion; and the Chief Justice announced the revolution com- 
 plete in the following memorable words: 
 
 "First. We adhere to the opinion already announced, 
 that the taxes on real estate, being indisputably direct taxes, 
 taxes on rents or income of real estate are equally direct 
 taxes. 
 
-8— 
 
 "Second. We are of the opinion that taxes on personal 
 property or on income of personal property are likewise direct 
 taxes. 
 
 "T uird. The taxes imposed on the income of real estate 
 and of personal property, being direct taxes within the mean- 
 ing of the constitution, and therefore unconstitutional and 
 void, because uot apportioned according to representation-— 
 all sections of the law constituting one entire scheme of in- 
 come taxation are necessarily invalid." 
 
 At the conclusion of the opinion, applause broke forth 
 outside the bar, which, however, was promptly suppressed 
 by the indignant little marshal, whose personal pulchritude 
 was only excelled by his official decorum. A few reporters 
 and others hurried out of the court room, but their places 
 were quickly filled by other bystanders anxious to witness the 
 entire proceedings, and catching from the electrified atmos- 
 phere the fact that, though the case was over, the contest 
 decided, and victory perched upon the standard of Dives, yet 
 the first scene only had been enacted, and there still remained 
 to be performed the most interesting portion of the greatest 
 judicial drama of our time. 
 
 Mr. Justice Harlan opened for the minority. He began 
 reading his dissent in slow and measured tones, and in a voice 
 slightly trembling, apparently with suppressed emotion. 
 Soon, however, this passed away, and for a time an earnest, 
 judicial emphasis characterized his utterance, during which 
 he declared: "Jn my judgment, to say nothing of the disre- 
 gard of the former adjudications of this court and of the 
 practice of the government for a century, this decision may 
 well excite the gravest apprehensions. It strikes at the very 
 foundations of national authority, in that it denies to the 
 general government a power which is, or may, at some time 
 in a great emergency, such as that of war, become vital to 
 the existence and preservation of the Union. It tends to 
 re-establish that condition of helplesness in which Congress 
 found itself during the Confederation, when it was without 
 power to lay and collect taxes sufficient to pay the debts and 
 defray the expenses of the government, and was dependent 
 in all such matters upon the good will of the States." 
 
— 9— 
 
 As he farther proceeded, however, the emotions of the 
 giant Kentuckian began to assert themselves. The florid face, 
 hitherto pale, assuming its natural color, reddened even to 
 the high crown of the big bald head; pent up indignation 
 burst its bounds and dominated the man; the judge seemed 
 lost in the statesman and patriot, and thenceforth to the end 
 the tone and manner and gesture even were those of indig- 
 nant advocacy and fervent protest. "The decision now 
 made/' he said, "will inevitably provoke a contest in this 
 country from which the American people had been spared, if 
 the court had not overturned its former adjudications and 
 had adhered to those principles of taxation under which our 
 government, following the repeated adjudications of this 
 court, had always been administered. . .Upon every occasion 
 when it has considered the question whether a duty on in 
 comes was a direct tax within the meaning of the constitu- 
 tion this court has, without dissenting voice, answered it in 
 the negative, always proceeding upon the ground that capi- 
 tation taxes and taxes on land were the only direct taxes 
 contemplated by the framers of the constitution. . .The prac- 
 tice of a century in harmony with the decisions of this court, 
 under which uncounted millions have been collected by tax- 
 ation, ought to be sufficient to close the door upon further 
 inquiry, based upon the speculation of theorists and the vary- 
 ing opinion of statesmen. . .In my judgment a tax on income 
 derived from real property ought not to be, and until now 
 never has been, regarded by any court as a direct tax upon 
 such property within the meaning of the constitution. . .And 
 in view of former adjudications, beginning with the Hylton 
 and ending with the Springer case, a decision now that a tax 
 on incomes from real property can be laid and collected only 
 by apportioning the same among the States on the basis of 
 numbers, may not improperly be regarded as a judicial revo- 
 lution, that may sow the seeds of hate and discord among 
 the people of our common country. . .In my judgment, to say 
 nothing of the disregard of the former adjudications of this 
 court, and of the settled practice of the government, this 
 decision may well excite the gravest apprehensions; for by 
 its present, construction of the constitution, the court, for 
 the first time in all its history, declares that our government 
 
—10- 
 
 has been so framed that in matters of taxation for its support 
 and maintenance, those who have incomes derived from the 
 renting of real estate, or from the leasing or use of tangible 
 personal property, or who own tangible personal property, 
 bonds, stocks, and investments of whatever kind, have priv- 
 ileges that cannot be accorded those having incomes derived 
 from the labor of their hands, or the exercise of their skill, 
 or the use of their brains.-' 
 
 And then in measured tones, but with intense earnest- 
 ness, the great Justice concluded this portion of his opinion 
 with these impressive words: "If this new theory of the con- 
 stitution, as 1 believe it to be, if this new departure from the 
 way marked out by the fathers and so long followed by this 
 court is justified by the fundamental laws, the American 
 people cannot too soon amend their constitution." 
 
 Turning then to the right and apparently addressing him- 
 self to the Chief Justice and Justices Field and Gray of the 
 majority, and possibly recalling the dissenting opinion of 
 Mr. Justice Field at the former decision, as well as the lan 
 guage of counsel on argument, Mr. Justice Harlan alluded 
 to the charge that the passage of the statute, imposing this 
 income tax, was an "assault by the poor upon the rich," and 
 that the tax would fall upon .the people of a few States, 
 while it was imposed by the votes of Senators and Represen- 
 tatives from other States; and then with vehement gesture 
 toward them, after the matter of counsel in an exciting jury 
 trial addressing his antagonist, he said in truculent tones: 
 "It is a suggestion that ought never to have been made in a 
 court of justice; and it is cause for profound regret that the 
 highest judicial tribunal of the land has thought it appro- 
 priate to intimate that the law now before us had its origin 
 in a desire upon the part of a majority in the two houses 
 of Congress to impose undue burdens upon the people of par- 
 ticular Slates. If, under the bounty of the United States, 
 or the beneficent legislatior of Congress, or for any other 
 reason, some parts of the country have outstripped other 
 parts in population and wealth, that assuredly is no reason 
 why people of the more favored States should not share in 
 the burdens of government with the people of all the States 
 in the Union. . . There is no tax which in its essence is more 
 
—11— 
 
 just and equitable than an income tax that allows only such 
 exemptions as are demanded by public considerations and 
 are consistent with the recognized principles of the equality 
 of all persons before the law, but which, while providing 
 for its collection in ways that do not unnecessarily irritate 
 and annoy 1 lie taxpayers, reaches out to every person who 
 enjoys the protection of the law, and requires him, out of 
 his earnings and under a rule of equality, to contribute his 
 reasonable share to meet the burdens of the common govern- 
 ment of all. . .Are those, in whose behalf arguments are made 
 that rest upon favoritism by the lawmaking power to mere 
 property and to particular sections of the country, aware 
 that they are provoking a contest, which in some countries 
 has swepl away in a tempest of frenzy and passion existing 
 social organizations, and put in peril all that was dear to 
 friends of law and order? Are they yet to learn that such 
 arguments tend to arouse a conflict that may result in giving 
 life, energy, and power as well to those in our midst who 
 are eager to array section against section as to those, un- 
 happily not few in number, who are without any proper idea 
 of our free institutions, and who have neither respect for 
 the rights of property, nor any conception of what is liberty 
 regulated by law?" 
 
 This act of the judicial drama occupying fifty minutes, 
 was concluded by Mr. .Justice Harlan in the following mem- 
 orable words: 
 
 "The practical, if not the direct effect of the decision to- 
 day is. to give to certain kinds of property a position of 
 favoritism and advantage that is inconsistent with the fund- 
 amental principles of our social organization, and to invest 
 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 the government, and who ought not 
 to be subjected to the domination of aggregated wealth any 
 more than the property of the country should be at the mercy 
 of the lawless. I dissent from the opinion and judgment of 
 the court." 
 
 While the previous reprimand of the marshal sufficed 
 to prevent a recurrence of applause in the court room. 
 
—12— 
 
 the earnest manner, lofty indignation, and glorified appear- 
 auce of this colossal Kentuckian had fairly infected the au- 
 dience, and the large majority appeared ready then and there 
 to amend the constitution according to his suggestions, or 
 to follow him in any other course where he might lead to pre- 
 vent a future recurrence of the monstrous injustice to the peo- 
 ple which he had so earnestly and powerfully portrayed. 
 
 Following him in dissent came Mr. Justice Jackson, of 
 Tennessee, th in- visaged, pale and weak-voiced, but not less 
 earnest and indignant than his giant compeer from the twin 
 sister State. His opinion was written, but he interjected fre- 
 quently oral expressions of great vigor and power, illustrat- 
 ing the doctrine of the text. His deliverance was slow and 
 painful to hear, interrupted, as it often was, by paroxysms of 
 coughing which impaired seriously the continuity of his utter- 
 ance and the effect of his expressions. But he was listened 
 to with sympathetic interest during the forty minutes of his 
 delivery, during which he gave utterance as follows: 
 
 "hi considering the question, whether a tax on incomes 
 from real or personal estate is a direct tax, within the mean- 
 ing of those words as employed in the constitution, I shall not 
 entev upon any discussion of the decisions of this court 
 from 1790 to 1880; nor shall I dwell upon the approval of 
 those decisions of the great law-writers of the country and 
 by all the commentators on the constitution; nor will I dwell 
 upon the long-continued practice of the government in com- 
 pliance with the principle laid down in these decisions. They, 
 in my judgment, settle and conclude the question now be- 
 fore the court contrary to the present decision. . .The decision 
 disregards the well-established rule or canon of construction 
 to which I have referred, that an act passed by a co-ordinate 
 branch of the government has every presumption in its favor 
 and should never be declared invalid by the courts, unless 
 its repugnancy to the constitution is clear beyond all rea- 
 sonable doubt. . .Again, the decision not only takes from 
 Congress its rightful power of fixing the rate of taxation, 
 but substitutes a rule incapable of application without pro- 
 ducing the most montrous inequality and injustice between 
 
-13— 
 
 citizens residing in different sections of their common coun- 
 try, such as the framers of the constitution never could have 
 contemplated; such as no free and enlightened people can 
 ever sanction or approve. . .The practical operation of the de 
 cision is not only to disregard the great principles of equality 
 in taxation, but the further principle that in the imposition 
 of taxes for the benefit of the government, the burdens there- 
 of should be imposed upon those having the most ability to 
 bear them. Considered in all its bearings, this decision is, 
 in my judgment, the most disastrous blow ever struck at the 
 constitutional power of Congress. It strikes down an import- 
 ant portion of the most vital and essential power of the 
 government, practically excluding any recourse to incomes 
 from real and personal estates for the purpose of raising 
 needed revenue to meet the government's wants and neces- 
 sities under any circumstances. I, therefore, am compelled 
 to dissent from the decision of the court, and think that 
 it is one most disastrous in its consequences." 
 
 Justice Jackson, to whom Justice Brown had given way, 
 upon concluding his' dissent immediately left the bench, as 
 many thought never to return. Let us hope for the better. 
 A careful review of this opinion, in print, warrants me in 
 saying that notwithstanding its brevity and the illness of 
 its author, it is not excelled in comprehensive grasp of the 
 subject, in judicial declaration of the law, nor in lofty, pa- 
 triotic sentiment by any opinion delivered on this memorable 
 day. 
 
 The deep bass voice of Mr. Justice Brown was next heard 
 in tones of dissent equally unmistakable, though less 
 vehement than those preceding him. In the course of his 
 opinion he said: "It cannot be supposed that the convention 
 could have contemplated a practical inhibition upon the 
 power of Congress to tax in some way, all taxable property 
 within the jurisdiction of the Federal government for the 
 purpose of a national revenue; and if the proposed tax were 
 such that in its nature it could not be apportioned according 
 to population, it naturally follows that it could not have 
 been considered a direct tax within the meaning of the clause 
 
—14— 
 
 in question. It is true that we have often held that what 
 cannot be done directly, cannot be done indirectly; but this 
 applies only when it cannot be done at all, directly or in- 
 directly. But if it can be done directly in one manner, that 
 is by the rule of apportionment, it does not follow that it 
 may not be done indirectly in any other manner. There is 
 no want of power on the part of Congress to tax land, but in 
 exercising that power it must impose direct taxes by the 
 rule of apportionment. The power still remains, however, 
 to impose indirect taxes by the rule of uniformity. Being of 
 opinion that a tax upon rents is an indirect tax upon lands, 
 I am driven to the conclusion that the tax in question is valid." 
 
 The concluding sentences of this weigthy opinion proved 
 its author a master of letters, as well as law, a statesman 
 and patriot as well as a judge, and cannot be omitted in any 
 just report of this memorable judicial field day. 
 
 "It is difficult to overestimate the importance of these 
 cases. I certainly cannot overstate the regret I feel at the 
 disposition made of them 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 clear 
 est 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 the necessary powers 
 of Congress. Did the reversal of these cases involve merely 
 the striking down of the inequitable features of this law, 
 or even the whole law, for its want of uniformity, the con- 
 sequences would be less serious; but as it implies a declaration 
 that every income tax must be laid according to the rule of 
 apportionment, the decision involves nothing less than the 
 surrender of the taxing power of the moneyed class. By 
 resuscitating an argument that was exploded in the Hylton 
 case, and has laid 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. Even the specter of socialism is conjured 
 up to dissuade Congress from laying taxes upon the people 
 in proportion to their ability to pay them. 
 
 "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. 
 
 "Believing as I do that the decision of the court in this 
 great case is fraught with immeasurable danger to the future 
 of the country and approaches the proportion of a national 
 calamity, I feel it my duty to enter a protest against it." 
 
 Mr. Justice White is of ardent temperament like Mr. 
 Justice Harlan, and his dissent, too, on this occasion was ex- 
 pressed in a forcible and oratorical manner. His deliver- 
 ance was oral and his utterance rapid; and after the manner 
 of the public speaker, he sought out the eyes of his auditors. 
 Intensely earnest and entirely masterful, he held the un- 
 divided attention of the audience through the forty minutes 
 in which he delivered his vigorous dissent, asserting, that 
 the reargument of the case had only tended to confirm his 
 former views and fo make it more plain to him than before, 
 that the income tax was not only just, but valid. The argu- 
 ments submitted, he said, to change his former convictions, 
 were involved in a series of contradictory theories, which he 
 then proceeded to examine and expose, how well the follow- 
 ing will illustrate: 
 
 "The decision here announced, holding that the tax on 
 the income from real estate and the tax on the income from 
 personal property and investments are direct and therefore 
 require apportionment, rests necessarily on the proposition 
 that the word 'direct' in the constitution must be construed 
 in its economic sense. But this economic sense of the word 
 applies not only to the income from real estate and personal 
 property, but the business gains, professional earnings, sal- 
 aries, and all of the many sources from which human activity 
 evolves profit or income without invested capital. These 
 latter, the opinion holds to be taxable without apportion- 
 ment, upon the theory that they are excises, and are therefore 
 covered by the previous decisions of this court on the sub- 
 ject of income taxation. But to except these things violates 
 
-16— 
 
 the economic sense of the word 'direct' which is now adopted. 
 It follows, I submit, that the decision now rendered adopts 
 a rule and at once overthrows it in part; in other words 
 the necessary result of the conclusion is to repudiate the de- 
 cisions of this court previously rendered, on the ground that 
 they misinterpreted the word 'direct' by not giving it its 
 economic sense, and then to decline to follow the economic 
 sense because of the previous decisions. Thus the adoption 
 of the economic meaning of the word destroys the decisions, 
 and they in turn destroy the rule established." 
 
 "The injustice of the conclusion points to the error of 
 adopting it. It takes invested wealth and reads it into the 
 constitution as a favored and protected class of property 
 while it leaves the occupation of the minister, the doctor, the 
 professor, the lawyer, the inventor, the author, the merchant, 
 and all the various forms of human activity, upon which the 
 prosperity of the people must depend, subject to taxation 
 without apportionment. A rule which works out this result 
 which stultifies the constitution by making it an instrument 
 for so grievous a wrong, it seems to me, should not be 
 adopted, especially when, in order to do so, the decisions of 
 this court, the opinions of the law writers and publicists, 
 tradition, practice, aud policy of the government must all 
 be overthrown 
 
 "It is, I submit, greatly to be deplored that, after more 
 than one hundred years of oar national existence, after the 
 government has withstood the strain of foreign war, and 
 the dread conflict of civil strife, and its people have become 
 united and powerful, this court should consider itself com- 
 pelled by the constitution to go back to a long repudiated 
 and rejected theory of that instrument, by which the govern- 
 ment is deprived of an essential attribute of its being, a nec- 
 essary power of taxation." 
 
 Upon the subject of apportioning taxes among the States, 
 according to population, he said: 
 
 "I can conceive of no greater injustice than would result 
 by imposing upon one million people in one State, having 
 only ten millions of invested wealth, the same amount of 
 taxes as that imposed upon a like number of people in anoth- 
 
17 
 
 ev fStute having fifty times that amount of invested wealth. 
 The grievous results sure to follow from an attempt to adopt 
 such a system, are so obvious that my mind cannot fail to 
 see that if a tax on invested personal property were imposed 
 by the rule of population, and there were no other means of 
 preventing its enforcement, the red specter of revolution 
 would shake our institutions to their very foundations." 
 
 These words were delivered with an unction and a fervor 
 bordering on passion, and impressed the audience not less 
 palpably than the impassioned utterances of the great senior 
 dissenter. 
 
 Thus the great drama ended, and before the audience 
 knew it, and almost without pause or period, Mr. Justice 
 White, lowering his voice, started off rapidly into the an- 
 nouncement of an opinion in a private case, in which the 
 public had no interest. Surprised at the easy transition, 
 the auditors, as they recovered from their astonishment, 
 gradually departed the court, satisfied that the revolution 
 Mas now accomplished. They had witnessed the most strik- 
 ing scene, the most remarkable judicial performance of this 
 generation. Only once since the Civil War had there been 
 any approach to such a display of sentiment and emotion in 
 this great tribunal, where reason and authority usually reign 
 supreme. Men say that when a rehearing was granted upon 
 the "Greenback Cases" the angry indignation of Chief Jus- 
 tice Chase found temporary expression in moistened eyes 
 and choking voice. Dramatic indeed was this display when 
 we recall that the intention and effect of the rehearing he 
 resisted in those cases was to legitimate his own great child, 
 the "Greenback Act," which his own voice had, only shortly 
 before, annulled and disinherited. But that was individual 
 and temporary; this was quadruple and prolonged; and, 
 while there was sentiment, emotion, and perhaps passion at 
 times betrayed by the dissenting judges, there was also a 
 deliberation and premeditation in the printed words of these 
 dissenters, protesting against and predicting the ruinous 
 result of this judicial revolution, which only reason and con- 
 viction could give, and which served to mark the announce- 
 ments of that day as the most celebrated in our judicial 
 
-18— 
 
 annals. Aud whoever shall read the opinions in these cases, 
 whether on the original or rehearing, whether the majority 
 or dissenting opinions, will have his mind relieved of any 
 pessimistic suspicion that we live in days of the intellectual 
 decadence of the American judiciary. 
 
 I have called this "devolution''; for so the dissenters 
 all describe it. and so one of them calls it by name — "Judicial 
 Revolution." the course of legislation and adjudication for 
 a hundred years was in a single day upturned, and this by a 
 bare majority of one in a court of nine, and that one a con- 
 vert to the new order after deliberate judicial decision to the 
 contrary scarce fifty days before. Of him Dives said, edi- 
 torially, next morning: 
 
 "The Nation's thanks are due Justice Shiras, who has 
 had the intelligence to perceive and the courage and candor 
 to acknowledge that his first impressions were erroneous. 
 But for this unselfish and patriotic action the vote of Jus- 
 tice Jackson would have fastened upon us a statute which 
 most enlightened and responsible men regard as mischievous 
 in the last degree. But for that we should now be living 
 under the shadow of a law which puuishes industry and 
 thrift, which raises odious class distinctions, which gives the 
 lie to the fundamental proposition that all men are equal 
 under our institution, and the effect of which would be to 
 overrun the country with a swarm of official inquisitors and 
 to array the people against the government in inextinguisha- 
 ble bitterness and hostility. All honor to the magistrate wise 
 enough to see all this and brave and frank enough to in- 
 terpose." 
 
 Plebs spoke otherwise of the course of the Justice of 
 Pei'sian patronym. 
 
 Time would fail to detail the reasoning of the majority 
 for this change of constitutional construction unprecedented 
 in our national jurisprudence. If justification be found in 
 the views of Mr. Justice Field at the first decision, under the 
 law of self-defense by capital, the reason of the court is best 
 expressed by the Chief Justice when, after quoting from 
 the Federalist the opinions and arguments of Madison and 
 Hamilton, he said: "In our judgment, the construction given 
 
—19— 
 
 io the constitution by the authors of the Federalist, should 
 not and cannot be disregarded." And yet it had been dis- 
 regarded by common consent for an hundred years! 
 
 The income tax law, though enacted by a Democratic 
 Congress, is essentially Federal legislation. To sustain it 
 as constitutional, required Federal leaning to liberal inter- 
 pretation; to declare it unconstitutional was easy for a dis- 
 ciple of strict construction; and so the battle was on again, 
 as an hundred years ago, between Federalist and Democrat, 
 between liberal and strict construction; and the duty of sus- 
 taining this Federal act was devolved upon a Democratic ad 
 ministration. That it was done faithfully and ably, no one 
 will question who has read the brief or heard the argument 
 of the Attorney-General. That the law failed was surely no 
 fault of his. But mark the party affiliation, sectional origin, 
 and personal antecedents of the actors in this case! 
 
 The four Democrats on the bench were equally divided 
 in opinion, while the Republicans stood three to two against 
 the law. Every Southern judge upheld the law, and the two 
 who had been Confederates in the Civil War and Democrats 
 ever since, maintained most stoutly in this judicial contest 
 the paramount authority of the Federal government. The 
 strict construtionists, on the contrary, were all Northern men, 
 of Eastern birth — four of New England parentage and one 
 of Pennsylvania. The Revolution of 20th May, 1895, is polit- 
 ical as well as judicial, and the whirligig of time lias brought 
 us face to face with the fact that, while in this great repre 
 sentative court five-sixths of the North antagonizes and re- 
 stricts the power and authority of the Federal government 
 to its narrowest limits, the South appears, through its three 
 representatives, without dissent or discord, as the doughty 
 champion of national sovereignty and Federal authority. 
 Note, too, that the three Justices from the great, central 
 Sixth Circuit, extending over fourteen degrees of latitude, 
 from Chattanooga to Isle Royale, balanced across "Mason 
 and Dixon's line," and most representative of the varied 
 interests and genuine American population of the United 
 States, all concurred in sustaining the congressional power 
 of income taxation. 
 
—20- 
 
 What shall be the ultimate result of this judicial revo 
 lutiou may uot appear in this country. Its immediate effect 
 is, however, already apparent. The aggregated wealth, .the 
 invested capital, whose accumulation is due to favorable 
 Federal legislation more than any other one cause, contrib- 
 utes nothing to the support of this government, whose bien- 
 nial expenses are a billion dollars, while the average citizen, 
 through the indirect taxes, tariff and excise, paid upon articles 
 of consumption, bears not only the entire burden of the ex- 
 penses of the national government, but also the expenses 
 entailed by that favoring legislation which swells the annual 
 income of capital and wealth to fabulous dimensions. 
 
 No great public contention is finally settled till it is set- 
 tled aright. Decisions of questions of public justice must 
 rest at last upon the immutable foundations of eternal jus- 
 tice! Forty years ago the owners of peculiar property in the 
 South appealed to the Federal courts for protection against 
 1hc aggressive agitation of the dominant sentiment of the 
 Christian world. They obtained it in the constitutional con- 
 struction of the fugitive slave law; and the Dred Scott de- 
 cision became famous on two continents. But the contention 
 involved in that case could not abide such judicial decision; 
 agitation increased and it was settled on appeal to arms and 
 by wager of battles, only when the flag of the Lost Cause 
 was furled forever at Appomatox in 1865. In 1895 the owners 
 of vast property in the North appealed to the Federal courts 
 for protection against the popular demand that they who get 
 the benefits of government shall bear their just share of 
 its expenses; and they get it in this decision of the Supreme 
 Court in the income tax cases; Dives wins, Plebs loses. Is 
 the contention settled? 
 
 AVffcY j