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direct taxes upon real property and slaves, and apportioned them among the several States. These statutes, therefore, cannot be considered as sustaining the doctrine that a direct tax upon personalty must be apportioned.

It seems, therefore, if either of the suggestions which I have made be valid, that the terms "direct taxes" in the Constitution means only what it has been considered to mean for nearly one hundred years; namely, a direct tax upon real estate only. But even if this is not so, still the term must mean direct taxes, and it need not be, and it ought not to be, admitted that the taxes levied by sects. 27-37 of the Act of Congress of August 27, 1894, are direct taxes in any sense, either upon land or any invested property. As is said by Mr. Justice White: "The point involved is whether a tax on net income, when such income is made up by aggregating all sources of revenue and deducting repairs, insurance, losses in business, exemptions, etc., becomes to the extent to which real estate revenues may have entered into the gross income, a direct tax on the land itself. In other words, does that which reaches an income, and thereby reaches rentals indirectly, and reaches the land by a double indirection, amount to direct levy on the land itself?" 2 It is submitted that this is an absolutely unanswerable argument, and yet it is nothing but a plain statement of fact; and the same argument applies to the tax on income derived from personalty. The question is not whether Congress can or cannot levy a tax upon personalty, as it is stated to be in the opinion of the majority of the Court, but whether Congress must apportion a direct tax levied upon personalty. No one contends or believes that the United States cannot tax personal property directly in some way. It is not true that Congress has hitherto neglected to exercise its right of taxation on personal property, as seems to be intimated by the learned Chief Justice. Beside the Carriage Tax Act of June 5, 1794, direct taxes on personal property were levied by the rule of uniformity by the Act of January 18, 1815, c. 22, 3 Stat. 180, by which duties were imposed upon (among other articles) pig-iron, hats, caps, and umbrellas, manufactured or made for sale within the United States. By the Acts of July 1, 1862, c. 119, 12 Stat. 432, 473; June 30, 1864, c. 173, 13 Stat. 223, 281; March 3, 1865, c. 78

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1 Acts of July 14, 1798, c. 75, 1 Stat. 597; August 2, 1813, c. 37, 3 Stat. 53; January 9, 1815, c. 21, 3 Stat. 164; March 5, 1816, c. 24, 3 Stat. 255.

2 157 U. S. 645.

158 U. S. 629.

* 158 U. S. 629.

13 Stat. 469, 479; March 10, 1866, c. 15, 14 Stat. 4, 5; March 2, 1867, c. 169, 14 Stat. 471, 480; July 14, 1870, c. 255, 16 Stat. 256; taxes were imposed upon incomes whether derived from any kind of property, rents, interest or from any source whatever, and levied by the rule of uniformity.1

The cases of Hylton v. United States, Pacific Insurance Co. v. Soule, Veazie Bank v. Fenno, Scholey v. Rew,5 Springer v. United States, have been so elaborately discussed in the opinions of the majority and minority of the Supreme Court that no useful purpose would be served by reiterating an analysis of them here. Suffice it to say, that Pollock v. Farmers' Loan & Trust Co. at the very least is utterly inconsistent with the reasoning of Scholey v. Rew as to the tax upon income derived from rentals, and Hylton v. United States and Springer v. United States as to the tax on income derived from personal property.

If the views of the minority of the Justices of the Supreme Court of the United States in Pollock v. Farmers' Loan & Trust Co. should in the end prevail, it would not be the first instance within very recent times of such an event, when the majority of the Court have overruled a line of decisions upon a question of constitutional law, which had been considered as settling the point. Plumley v. Massachusetts in effect overrules Leisy v. Hardin.R

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HARVARD LAW REVIEW.

Published monthly, during the Academic Year, by Harvard Law Students.

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THE LAW SCHOOL. The year starts with some changes in the curriculum. Professor Langdell has discontinued his course upon Suretyship and Mortgage, and in its place a course on Suretyship will be given under Professor Ames, who, in turn, has given up his course on Quasi-Contracts. The half-course, Contracts II. has been merged into the former course on Quasi-Contracts, and both will now be given together as one course under Professor Wambaugh. Professor Beale has undertaken the course on International Law in the college, and some other changes of minor importance have been made.

The returns now at hand show a proportionally unprecedented increase in the numbers of the school. December number.

Full statistics will be given in the

THE NEW QUINQUENNIAL CATALOGUE.-Those members of the Harvard Law School Association who were present at the Langdell Anniversary celebration in June were each made the recipient of the new catalogue, and any members who have not as yet received a copy should apply for one at once to the librarian. The catalogue accounts for 6,210 past and present members of the school, as against 5,470 in the last quinquennial. A complete geographical list of living graduates is introduced for the first time, affording ready reference to the body of Harvard Law School men in every part of the country. As this book supersedes the previous catalogues of the Law School Association, the names of its members appear in the geographical list in small capitals. The catalogue is put forth as the joint work of the Association and of the School, but the greater portion of the labor fell upon the librarian; and it was in appreciative recognition of this fact that Mr. Arnold was unanimously elected to honorary membership at the last annual meeting. The preparation of a work of this kind involves an enormous amount of labor, and the whole body of our graduates is to be congratulated upon its successful completion.

AN AGENT'S AUTHORITY BY NECESSITY. - In 8 HARVARD LAW REVIEW, 496, a note occurs on the subject of an agent's authority by necessity, based on the case of Gwilliam v. Twist, 11 The Times, L. R. 205. This case has subsequently been reversed, but on grounds which in no wise impugn the propositions of law laid down in the lower court, the ratio decidendi being that the facts of the particular case did not raise the question of necessity at all. See Gwilliam v. Twist, 11 The Times, L. R. 415.

THE INCONSISTENCIES OF THE LAW OF GIFTS. - The May-June number of the American Law Review, has an interesting article by C. B. Labatt, Esq., of the New York bar, on the inconsistencies of the law of gifts. The writer deplores the wide difference between the present rule at common law which makes delivery or a deed essential, in a gift of the legal title, and the rule of equity which makes a gratuitous declaration of trust sufficient, in a gift of the equitable interest. He suggests that this rule of equity may have had its origin in an enactment of Justinian, and is of opinion that its utter inconsistency with the rule at common law is to be explained only by the peculiar historical position of the Court of Chancery.

One is rather puzzled at this because it omits all mention of the case of Ex parte Pye (18 Ves. 140), and seems to assume that the present rule regarding declarations of trust is as old as the Court of Chancery itself. But surely the rule before the decision in Ex parte Pye was, and for three centuries had been, against the validity of a gratuitous declaration of trust. In Doctor and Student, in the first part of the sixteenth century, it was taken for law that while a man could, for no consideration, transfer his equitable interest in property of which another was trustee, he could not, without consideration, grant an equitable interest in his own property, by declaring himself a trustee. In the one case the transaction between donee and donor was complete. The donee asked the aid of equity, not against the donor, but against the trustee, and as the trustee had received something, equity compelled him to account for it. In the other, the donee asked the aid of equity to complete the promised gift of the donor. The donor had received nothing, and equity declined to interfere. (Doctor and Student, Dialogue II., chap. 22, 23.) The rule was perfectly consistent, and at the beginning of the nineteenth century was still taken to be good sense and good law. Sloane v. Cadogan (Sugden, 3 Vend. & Pur., 10th ed., App. 66). Three years after this case, in 1811, Lord Eldon, the most conservative of Chancellors, made, in Ex parte Pye, the famous decision which first gave effect to gratuitous declarations of trust, and involved the law in its present inconsistencies. Thus the difficulty in the law of gifts, so far as the rules of equity are responsible for it, is not yet one hundred years old.

Mr. Labatt thinks it improbable that in these rationalizing days, this branch of law can remain unchanged, and he predicts that the change, when made, will be a compromise, which, while "prohibiting merely informal gifts," will mitigate the "stern and unbending rule of the common law by permitting certain evidential facts to stand as an adequate substitute for delivery." Perhaps a simpler remedy - if it is necessary to have a remedy - would be to abolish by statute the doctrine of Ex parte Pye. That would restore the doctrine of equity to its former satisfactory condition, put an end to the inconsistency of which Mr. Labatt

complains, and leave untouched the rule at common law which after the half-century of conflict (if one may borrow the expression) following Irons v. Smallpiece (3 B. & Ald. 551) is, there is reason to hope, at last

settled.

THE VALUE OF HONEST INTENTIONS. In Nash v. Minnesota Title & Insurance Co. (40 N. E. R. 1039), an action of deceit, a majority of the Supreme Judicial Court of Massachusetts decided that a defendant who had written a letter reasonably to be understood as warranting a title, might show that the letter was intended to convey another meaning. In this opinion the majority follows Derry v. Peek, 14 App. Cas. 337 (noted in 3 HARVARD LAW REVIEW, 231). Field, C. J., and Holmes, J., dissented, arguing, as does Sir Frederick Pollock in 5 Law Quar. Rev. 410, that a man should be bound by a reasonable interpretation of his words when he knows others will act upon them. Though not cited by the Court, a dictum in Litchfield v. Hutchinson, 117 Mass. 195, also appears to support this view.

There seems little doubt that the decision of the majority is right on historical grounds, but whether it is in thorough touch with the trend of the law, is a dubious question. The present tendency certainly seems to be in favor of requiring moral fraud for deceit, on the ground that it is hard to subject the honest giver of gratuitous information to the determination of the jury as to its good sense; yet in the case of a gratuitous bailee more than mere honesty is required, and the two cases are not easily distinguishable. The ground of the decision, therefore, probably lies as much as anywhere in the greater hesitation of the courts to give security to the seeker of information than to the possessor of property rights.

RETREATING TO THE WALL.- Beard v. United States, 15 Sup. Ct. Rep. 962, is a recent case which has perhaps attracted more attention than its actual decision warrants. The defendant was feloniously assailed and killed his man without "retreating to the wall." The substance of the charge in the court below was that if he could have avoided taking life by getting out of the way, he was guilty of manslaughter. On error, this charge, which takes no account of what may have reasonably appeared necessary to the prisoner at the time of the killing, was very naturally held erroneous by the Supreme Court, and the judgment reversed.

On the facts of the case the decision seems unexceptionable; namely, that when a man is murderously assaulted, he need not pause and speculate as to whether retreat would be safe and expedient, but is entitled to meet the attack with such force as he honestly believes, and has reasonable ground to believe, is necessary to save his life or protect himself from serious injury. It is the dicta in Mr. Justice Harlan's opinion, however, which, although quite unnecessary to the decision, have attracted such wide attention. Their general purport is that in case of a felonious as ault the doctrine of retreating to the wall does not apply. On this point the Court shows a leaning toward the view held by Bishop and Wharton and other dissenters from the old doctrine of the common law. Nevertheless, the earlier view, supported by equal authority, seerns more consistent with principle. Resistance to an assault, where life is not involved, may be allowed in kind; but killing to prevent a felony, in this as in other cases, should be justifiable only where no other reasonable

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