PRINCIPLES OF TAXATION. 157 



that tlie entity, called a State, they were about to create, should 

 have any power of discriminating in respect to the imposition of 

 duties, imposts, and excises in any degree ; fully recognizing that 

 the moment a State or government thus discriminates it passes 

 the line of distinction between a free government and one that is 

 not free. It is to be further noted that the words " to pay the 

 debts and provide for the common defense and general welfare of 

 the United States " should also be regarded in the light of a limi- 

 tation of the purpose for which the taxes, etc. (authorized in the 

 opening words of the section), may be laid and collected. This 

 view was taken and strongly presented by Mr. Jefferson in 1791, 

 shortly after the adoption of the Constitution. He says : " To 

 lay taxes to provide for the general welfare of the United States 

 is to lay taxes for the purpose of providing for the general wel- 

 fare. For the laying of taxes is the jpoiuer, and the general wel- 

 fare the purpose, for which the power is to be exercised. They 

 are not to lay taxes ad libitum for any purpose they please, but 

 only to pay the debts or provide for the welfare of the Union. In 

 like manner they are not to do anything they please to provide for 

 the general welfare, but are to lay taxes for that purpose." T. 

 Jefferson's Works, p. 557. 



Finally, there was added by amendment to the Constitution 

 the following provision, which, although implied in the Magna 

 Chorfa, had not been previously so explicitly expressed in the 

 Constitution or statutes of any other State: "Nor shall pirivate 

 property he taken for public use withoid just compensation." Ob- 

 viously this provision constitutes another limitation on the power 

 of Congress in respect to the taking of private property for public 

 use by taxation or any other method. In a case involving the 

 bearings of this provision on the taxation of a citizen of New 

 Jersey, the Supreme Court of that State analyzed and interpreted 

 its meaning as follows : " A tax upon the person or property of 

 A, B, and C individually, whether designated by name or in any 

 other way, which is in excess of an equal apportionment among 

 the persons or property of the class of persons or kind of prop- 

 erty subject to this taxation is, to the extent of such excess, the 

 taking of private property for a public use without compensation. 

 The process is one of confiscation and not of taxation." S6 New 

 Jersey, p. 66, 1872. 



It is certain, therefore, that in at least one assemblage for the 

 purpose of creating a State namely, the Federal Convention its 

 members clearly recognized the incompatibility of the possession 

 and exercise of an unlimited power of taxation by a State and 

 the coexistence of a free government. 



Eight of Eminent Domain. Apart from the right of a 

 State to take private property for its use by taxation, the State 



