6

economic test; and according to Locke, Turgot, and the physiocrats, whose views were widely accepted in the eighteenth century, the only possible direct tax would be on realty or the income therefrom, because of their belief that the burden of all taxes ultimately falls on the land. The question was first presented to the Supreme Court in Hylton v. United States. In that case, the court, composed almost entirely of members of the Constitutional Convention, held that an unapportioned tax on carriages kept for personal use or for hire was valid, and stated that direct taxes, in the constitutional sense, included only a capitation, or poll tax, and a tax on land. They expressly refused to decide the status of a tax on the produce of land. This ruling was followed in a number of later decisions, in which a tax on the income of insurance companies,9 a tax on bank note circulation,10 a real estate succession tax," and finally, in Springer v. United States,12 a general income tax were held valid without apportionment. The only taxes apportioned by Congress were those on real estate and on slaves.13

Thus, the rule announced in the Hylton case became the settled interpretation of the constitutional provisions, and was accepted by all the text-writers on the subject.14 In 1895, however, the Supreme Court, in the famous case of Pollock v. Farmers' Loan & Trust Co.,15 decided by a majority of six to two, that a tax on the income from land, being in substance a tax on the land itself, was a direct tax. On rehearing,16 it was further held by a vote of five to four, that the same rule must apply to a tax on the income from personalty, since, on the test of shiftableness, no distinction could be made between a tax on the ownership of realty, and one on the ownership of personalty. The Hylton case was rather summarily dismissed, as not covering the point at issue.17 It was said in the first hearing that Springer v. United States was not in point, because only the question as to income from realty was before the court; 18 on rehearing, the case was not mentioned by the majority. This decision

6 See 24 HARV. L. REV. 31, 33.

7 3 Dall. (U. S.) 171. The decision went on the ground of the manifest absurdity and injustice of apportioning a tax on carriages or similar commodities, as well as on the supposed technical meaning put on "direct taxes" by the framers of the Constitution.

8 By Paterson, J., 3 Dall. (U. S.) 171, 177.

9 Pacific Insurance Co. v. Soule, 7 Wall. (U. S.) 433

10 Veazie v. Fenno, 8 Wall. (U. S.) 533.

11 Scholey v. Rew, 23 Wall. (U. S.) 331.

12 Springer v. United States, 102 U. S. 586.

13 For a list of the direct taxes levied previous to 1880, see Springer v. United States, 102 U. S. 586, 598.

The inclusion of slaves in, these taxes is to be explained on the ground that slaves were regarded as realty in many of the slave-holding states. See Springer v. United States, 102 U. S. 586, 599.

14 See KENT, COMMENTARIES, Holmes' ed., 254; I STORY, On the CONSTITUTION, 5 ed., $955; COOLEY, CONSTITUTIONAL LIMITATIONS, 7 ed., 686.

157 U. S. 429. In this case, as in the Brushaber case, the suit was brought by a stockholder to enjoin the corporation from paying the tax. The dissent believed that the injunction could not be granted, since an injunction against the payment of taxes is forbidden by REV. STAT., § 3224, U. S. COMP. STAT., § 5947. The majority, however, took the other view without argument.

16 158 U. S. 601.

17 Ibid., 626.

has been much criticised, both because it overthrew a well-settled rule of construction, and disregarded the intention of the framers of the Constitution,19 and because since an apportioned income tax was impracticable, it prevented the government from availing itself cf this valuable source of necessary income.20

The difficulty thus created was finally met by the adoption of the Sixteenth Amendment, which was immediately followed by the Tariff Act of 1913,21 providing for a graduated tax on all incomes over $4000, with certain exemptions, and imposing on all corporations a duty to retain and pay over the tax due on the interest from corporate bonds and mortgages. The plaintiff in the Brushaber case attacked the constitutionality of the tax, on the ground that, as it did not comply with the provisions of the Amendment, since the words "income from whatever source derived" forbade exemptions, it was a direct tax which must be apportioned under the rule of Pollock v. Farmers' Loan & Trust Co.22 The court decided, however, that the tax was within the scope of the Amendment, the words in question having been introduced merely to do away with the distinction between income from property and professional earnings made in the Pollock case. It was also claimed that the tax, if indirect, violated the uniformity rule, and that the progressive tax based on wealth, and the duty imposed on corporations, were in conflict with the due process clause of the Fifth Amendment. It is well settled, however, that the due process clause is not a limitation on the taxing power of Congress,23 unless the classification is so arbitrary as to amount to a real confiscation of property. Moreover, it is clear that only geographical uniformity is necessary to satisfy the requirements of Article I, Section 8.24 Thus, the unanimous opinion of the court in upholding the constitutionality of the tax is unquestionable, whether the Amendment is regarded as authorizing an exception to the rule of apportionment, or as definitely classifying the income tax as indirect.

IS LEGAL OR MORAL WRONG INVOLVED IN THE "KNOWLEDGE OF RIGHT AND WRONG" Test of INSANITY? — In an opinion of marked force and ability, the New York Court of Appeals, speaking through Judge

19 See 9 HARV. L. REV. 198; 20 HARV. L. REV. 280; 24 HARV. L. REV. 31. 20 The practical effect of the decision seems to have been much less than might have been expected. Four years later, the Supreme Court, in Knowlton v. Moore, 178 U. S. 41, sustained an unapportioned succession tax on land. And, in 1911, in Flint v. Stone, Tracy Co., 220 U. S. 107, a tax upon the business of corporations, measured by the entire net income, was unanimously upheld. In both these decisions, the court distinguished the Pollock case on the ground that the tax there discussed was imposed on property because of its ownership, while in these cases it was a tax on the right to use property in a certain way. But the distinction seems more formal than substantial. See 24 HARV. L. REV. 563.

21 Sec. II, ch. 16, 38 U. S. STAT. AT L. 166.

22 158 U. S. 601, 635.

23 Patton v. Brady, 184 U. S. 608; McCray v. United States, 195 U. S. 27, 61; Billings v. United States, 232 U. S. 261, 282.

24 Head Money Cases, 112 U. S. 580, 594; Knowlton v. Moore, 178 U. S. 41, 83; Patton v. Brady, 184 U. S. 608, 622; Flint v. Stone, Tracy Co., 220 U. S. 107, 158; Billings v. United States, 232 U. S. 261, 282.

Cardozo, has given a broad construction to the narrow statutory test of insanity in force in that state. In the case under discussion, the trial court had excluded the defense that the accused, though he knew he was committing the legal crime of murder, insanely believed that he acted under the direct command of God. Conviction was affirmed because the record contained an admission that the defendant was sane, but the ruling of the trial court was disapproved in an elaborate dictum, which will doubtless have the effect of establishing the New York rule. People v. Schmidt, 216 N. Y. 324.

1

The New York Penal Law 1 adopts the language of McNaghten's Case,2 which gives a defense to insane persons only when they did not know the nature or quality of the act they were doing, or did not know "that the act was wrong." It seems that the judges in McNaghten's Case, who only stated the law as they found it, understood "wrong" as meaning only legal wrong.3 Judge Cardozo, however, considers the word to have the broader signification of moral, as well as legal wrong. Some reliance is placed on English cases where the jury were charged in general terms that the accused must have known the act to be "contrary to the laws of God and man," or must have understood the "wickedness" of his act, and other similar phrases. But in the ordinary case it is really not necessary to distinguish legal from moral wrong, and courts may incline to use such general expressions rather than burden the jury with unnecessary technical refinements. On the other hand, if the few reported American cases that are either decisive or explicit reflect the meaning of the rest, the ambiguous language of the state courts of to-day refers to "wrong" in its broader interpretation. The penal codes of the various states 5 are as silent on the question as that of New York, but of the foreign codes that have adopted substantially the same test six expressly use the words. "criminality" or "illegality" whereas only two define "wrong" in its moral sense.6

1 § 1120.

2 10 Cl. & F. 200.

In the debate in the House of Lords prior to asking the opinions of the judges on the McNaghten Case, Lord Brougham said "he knew the learned judges used the phrase with reference to the commands of the law." 67 HANSARD'S DEBATES, Third Series, 732. See also the opinions in accord in OPPENHEIMER, CRIMINAL ResponsiBILITY OF LUNATICS, 34 ff., 142, and 148 ff., and in STROUD, MENS REA, 73-77. See WOOD RENTON, LAW OF AND PRACTICE IN LUNACY, 902, for the other view. The doubt on the subject is due largely to ambiguous phrases used in charges to juries. See Bellingham's Case, I. COLLINSON, LUNACY, 636, 673; Regina! v. Townley, 3 F. & F. 839; Regina v. Layton, 4 Cox C. C. 149. But compare the explicit language of Bramwell's charge in Regina v. Dove, cited in WOOD RENTON, LAW OF AND PRACTICE IN LUNACY, 901: "You must be satisfied that he had not a sufficient degree of reason to know he was doing an act which was wrong. Of course, that means doing an act prohibited by law. . . ." It is interesting to know how Sir J. F. Stephens would have charged the jury on the facts of the principal case. In his HISTORY OF THE CRIMINAL LAW, II, p. 160, in a note he says: "My own opinion however is that if a special divine order were given to a man to commit murder I should certainly hang him for it unless I got a special divine order not to hang him."

Kearney v. State, 68 Miss. 233, 241, 8 So. 292, 294, seems to be the only direct decision, but in the charge in Guiteau's Case, 10 Fed. 161, 182, the court said: “If a man sincerely believes he has a command from the Almighty to kill, it is difficult to understand how a man can know it is wrong to do it." Usually the language of the courts is loose and indefinite. See State v. Jackson, 87 S. C. 407, 415, 69 S. E. 883, 886. ' Collected in 3 JOURNAL OF CRIMINAL LAW, 890, and 4 Id., 67.

• Collected in OPPENHEIMER, CRIMINAL RESPONSIBILITY OF LUNATICS, c. 3.

In theory, legal wrong would seem the proper interpretation. If the law is to be an efficient preventive of crime, all who could be deterred should be threatened with its sanctions. Only with the irresponsible, against whom the threat of the law is vain, must the law have recourse to the hope of a cure by the psychopaths. Irresponsibility results from an absence of choice, that is, where mental disease or infirmity either inhibits the ability to choose or affects the understanding of the alternatives. It is true, the McNaghten test has been criticised as looking only to the understanding and ignoring the volition element, and some courts have consequently recognized irresistible impulse as a defense negativing a voluntary choice. But that possibility is admittedly excluded in New York by the code provision. If, then, the supposed command of God, in the principal case, was irresistible, there would be no defense under the code on that ground. If resistible, then it is a case of one who voluntarily broke the law of the land for moral reasons, and in this respect the insane man is in no better position than the Mormon who feels impelled by divine command to commit bigamy.10 For the law is not concerned with insanity as such, but only as it bears on the responsibility of the actor. In each case the defendant has made his choice, with a capacity to understand and obey the law, and he should be visited with its penalties.

It is entirely natural that the court should chafe at the narrowness of the statutory test, and seek to give it the broadest interpretation. Our attitude toward the insane defendant has undergone a change. A hundred years ago courts were presented with the alternatives of hanging the defendant or of casting him into a madhouse; there was little room for mercy in the choice. But to-day the defendant can be sent to a hospital in hope of a cure; and the danger is that mercy will exaggerate the hope. However, the construction adopted would cover only a small and anomalous class of cases of questionable expediency, and would leave unremoved the essential objection to the McNaghten test. The proper direction for reshaping the law on this subject is the adoption, not of any legal test however broad, but of the recommendations of the American Institute of Criminal Law and Criminology." Let the psychopathic experts, chosen by the impartial court, examine the defendant as a patient and tell the jury how his alleged mental disease had impaired his understanding and volition in respect to the act charged; let the court charge the jury as to what understanding and volition are necessary to the crime; then let the jury measure the facts by the legal requirements. Such a division of labor would abate somewhat the long-standing conflict between the legal and medical professions, recognizing, as it does, the distinctness of the legal and medical problems involved.

7 See Lord Bramwell, "Insanity and Crime," 18 NINETEENTH CENTURY, 893. Plake v. State, 121 Ind. 433, 23 N. E. 273. For further citations, see 3 WITTHAUS

& BECKER, MEDICAL JURISPRUDENCE, 2 ed., 450 and 455.

9 See Flanagan v. People, 52 N. Y. 467; People v. Wood, 126 N. Y. 249, 268, 27 N. E. 362, 367.

10 Reynolds v. United States, 98 U. S. 145.

11 See REPORT OF COMMITTEE B, 1911, 2 JOURNAL OF CRIMINAL LAW, 521, 525. Alabama (Parsons v. State, 81 Ala. 577, 2 So. 854) and New Hampshire (see Doe, J., in State v. Pike, 49 N. H. 399, 408) have progressed so far as to abolish the legal tests for insanity, but they both lack the important feature of an impartial selection of the experts by the court.

UNIFORM CONSTRUCTION OF THE UNIFORM ACTS. With the widespread adoption of the growing number of Uniform Acts, recommended by the Commissioners on Uniform State Laws, the question of what principles should be applied by the courts in their construction is becoming increasingly important. In a recent case before the Supreme Court it was urged that the Uniform Warehouse Receipts Act was but a step in the development of the state law, and that prior decisions of the state court were safe guides to its construction; but the court rejected that view, and so interpreted the act as to accomplish as far as possible its fundamental purpose to bring the law of the state into harmony with the commercial law of the whole country. Commercial National Bank of New Orleans v. Canal-Louisiana Bank & Trust Co., Sup. Ct. Off., No. 117.1

The Conference of Commissioners on Uniform State Laws held its first meeting in 1892.2 Since that time it has approved and recommended for adoption by the states fifteen Uniform Acts.3 The purpose of the Conference is to secure uniformity of law on matters which from their nature are largely interstate, by voluntary action on the part of all the states, since this end is unattainable through the federal government because of constitutional limitations. But obviously, if the courts place diverse constructions on the statutes so as to perpetuate former local doctrines, this attempt to bring order out of chaos will fail of success. Uniformity of the "judge-made law" is as essential as uniformity of the statute law. In many cases the courts have recognized the purpose of the Uniform Acts, and have construed them liberally, examining decisions from other courts under the same sections of the acts in order to secure uniformity, even though this may have necessitated a change from the old rule in their own state. But a number of courts have ig

1 For a more complete statement of this case, see RECENT CASES, p. 561.

2 See PROCEEDINGS OF THE TWENTY-FIFTH CONFERENCE OF COMMISSIONERS ON UNIFORM STATE LAWS, Aug. 1915, p. 1.

3 Ibid., p. 139.

4 See 36 AM. BAR ASS'N REP. 897, 898.

5 Mr. Justice Hughes forcibly expressed this danger in the principal case, p. 6: "It is apparent that if these Uniform Acts are construed in the several states adopting them according to former local views upon analogous subjects, we shall miss the desired uniformity and we shall erect upon the foundation of uniform language separate legal structures as distinct as were the former varying laws. . . . [The Uniform Act] should not be regarded merely as an offshoot of local law."

Under the Uniform Bills of Lading Act. Roland M. Baker Co. v. Brown, 214 Mass. 196, 100 N. E. 1025.

Under the Uniform Sales Act. Pope v. Ferguson, 82 N. J. L. 566, 83 Atl. 353. Under the Uniform Warehouse Receipts Act. Kershaw v. Booth Fisheries Co., 177 Ill. App. 117.

Under the Negotiable Instruments Law. Wirt v. Stubblefield, 17 App. D. C. 283; Vander Ploeg v. Van Zuuk, 135 Ia. 350, 112 N. W. 807; Mechanics' & Farmers' Savings Bank v. Katterjohn, 137 Ky. 427, 125 S. W. 1071; Vanderford v. Farmers' & Mechanics' National Bank of Westminster, 105 Md. 164, 66 Atl. 47; Union Trust Co. v. McGinty, 212 Mass. 205, 98 N. E. 679; Walker v. Dunham, 135 Mo. App. 396, 115 S. W. 1086; Rockfield v. First National Bank of Springfield, 77 Oh. St. 311, 83 N. E. 392; Felt v. Bush, 41 Utah 462, 126 Pac. 688; Trustees of American Bank of Orange v. McComb, 105 Va. 473, 54 S. E. 14; Columbian Banking Co. v. Bowen, 134 Wis. 218, 114 N. W. 451; First National Bank of Shawano v. Miller, 139 Wis. 126, 120 N. W. 820, and cases cited in n. 18.