OPINION OF THE CONFEDERATE ATTORNEY-GENERAL ON THE (From the original manuscript records now in the New York Public Library.) RICHMOND, May 3d, 1864. TO THE SECRETARY OF THE TREASURY, SIR: The letter of Hon: Ed. J. Harden, which you have referred to me for advice, presents the following question:-Does the 7th Section of the "Act to lay taxes for the common defence, and carry on the Government of the Confederate States," approved 24th April, 1863, subject to taxation the salaries of the Judges of the Confederate States? And, if so, is it constitutional? The 7th Section is in these words-"That upon the salaries of all salaried persons, serving in any capacity whatever, except upon the salaries of persons in the military or naval service, there shall be levied and collected a tax of one per centum on the gross amount of such salary, when not exceeding fifteen hundred dollars, and two per centum, upon any excess over that amount, to be levied and collected, at the end of each year, &c." The language of the section is very broad. The tax is imposed upon the salaries of "all salaried persons, serving in any capacity whatever," except those of certain officers specially mentioned. And this very exception shows more clearly, if possible, the universal scope of the Act. Where the language is so explicit and imperative, I am not aware of any principle upon which another exception can be added to those contained in the Act. There is no room for construction, and it must be held that it was the intent of the Act to embrace the Salaries of the Confederate Judges. But I am equally clear in the opinion, that this intent is unconstitutional and illegal. The Constitution, Art III, Section 1, provides, that "the Judges, both of the Supreme and inferior Courts, shall hold their offices, during good behaviour, and shall, at stated intervals, receive for their services, a compensation which shall not be diminished, during their continuance in office."— * * * These provisions secure, as far as human wisdom can do so, the independence of the Judges in the tenure of their office, and in the amount of their compensation. They cannot be too highly estimated, nor too sacredly regarded. "Next to permanence in office," says the Federalist, "nothing can contribute more to the independence of the Judges, than a fixed provision for their support * *. In the general course of human nature, a power over a man's subsistence, amounts to a power over his will. And we can never hope to see realized in practice the complete separation of the judicial from the legislative power, in any system which leaves the former dependent, for pecuniary resource, upon the occasional grants of the latter."— To preserve the Country from the curse of a dependent and venal Judiciary, it is of the last importance that the provisions of the Constitution should be rigidly observed. To evade them by indirection, may be more dangerous than to attack them openly; for thus encroachments by small degrees, may grow into binding precedents, before public attention is aroused to their legitimate tendency. The only safety is in resisting the evil at its first approach, in whatever shape it may come. Congress is forbidden to diminish the salaries of the Judges; and it is as much a violation of the prohibition to do it in one way, as in another-indirectly, as directly. That Congress cannot pass an Act directly reducing the salaries by one fourth their amount, will be readily admitted. But what difference is there between such an Act, and an Act taxing them to one fourth of their amount? The result is precisely the same. The Judges lose one fourth of their compensation by the legislation of Congress. And it is just this result which the Constitution prohibits, whatever may be the form in which it is attempted. If a tax of twenty-five per cent is unconstitutional, a tax of one per cent must be equally so. The difference is in degree only, not in principle.The question suggests its own answer; and I am at a loss how to argue a proposition so plain. If it be needed, the weight of judicial authority is not wanting to this opinion. I am not aware of any case decided in the Courts of the U. S. I believe no attempt was ever made under that Government to tax the Salaries of the Judges. The Constitution of 1790, of Pennsylvania, contained this provision:-" The Judges of the Supreme Court, and the Presidents of the several Courts of Common Pleas, shall, at stated times, receive for their services an adequate compensation to be fixed by law, which shall not be diminished during their continuance in office, but they shall receive no fees or perquisites of office, nor hold any other office of profit, under the Commonwealth."— In 1841, the Legislature of that State passed an Act assessing a tax of two per cent upon the Salaries of the Judges. But the Supreme Court unanimously decided that the Act was unconstitutional and void. 5 Watts & Serg. 403. GEO. DAVIS, Attorney-General. THE SIGNERS TO THE DECLARATION OF INDEPENDENCE. PENNSYLVANIA. IN THREE PARTS-PART I. (Emmet Collection. Presented to the New York Public Library by John S. Kennedy.) Sanderson (John). Biography of the Signers to the Declaration of Independence. Volume X., Pennsylvania. Illustrated by Thomas Addis Emmet, M.D. New York [1870?]. F°. The volume consists of the life of Benjamin Rush, by John Sanderson, from volume 4, pages 247 to 286 of the original edition of Sanderson; of George Clymer, by Robert Waln, jr., from volume 4, pages 171 to 246; of George Ross, by H. D. Gilpin, from volume 8, pages 185 to 199; and of James Smith, by Edward Ingersoll, from volume 7, pages 177 to 236. The material indexed consists of: bill of exchange 1, documents 9, engravings 5, letters 35, map 1, newspapers 2, porraits 59, views 24. View: Philadelphia, Penn. Inscription: BENJAMIN RUSH. Endorsed. 2 pp. F°. Portrait: Rush (Benjamin). Engraved by will therefore be the more acceptable. A. L. S. R. W. Dodson from a painting by T. Sully. Proof before letter. 4°. EM. 2904 A proof of the plate in the National Portrait Gallery, vol. 3, N. Y., 1836. Letter: Rush (Benjamin). Philadelphia, Oct. 22, 1806. To the Earl of Buchan. He has deferred answering the letter by Dr. [Nathaniel] Chapman, because the box made of the tree which sheltered Wallace was stolen on the road, and he has vainly tried to recover it; he deeply regrets the loss of the gift; congratulates Buchan on the elevation of his brother [Lord Erskine] to the Chancellorship; the latter's son [David Montagu Erskine] will be received with open arms as minister to the United States; the Palmer family, recommended by Buchan, are doing well; Major [David] Lenox's family often talk of Buchan's friendliness to them. Lithograph fac-simile of an A. L. S. in possession of R. C. Davis Esq. Phila. 2 pp. F°. With a wood engraving, Drawn from memory by C. A. Poulson. Shippen Mansion,' Res. of Dr. B. Rush, at the time of his death. No. 98 South 4th. Street Philada. EM. 2905 Also in Brotherhead's Book of the Signers, Phila., 1861, P. 7. Letter: Rush (Benjamin). Philadelphia, Oct. IO, 1773. To William Gordon, near Boston. He was glad to hear from [Thomas] Mifflin of Gordon's happiness and increasing usefulness; he sends two recent productions of his own; the Vindication of his Address [on Slave-Keeping] will rectify Gordon's notions as to the state of slavery amongst the Jews; he has sent a copy to Samuel Elliott, with a view to republication in Boston; they are preparing to oppose the landing of the East India tea; the pieces in the newspapers signed Scævola are written by Mifflin, those signed Hamden are by himself; the competition with which he has long struggled from his brethren of the faculty extends to all his publications, and the negro cause in Philadelphia has on this account suffered through him; any notice that Gordon may take of his publications EM. 2906 The first letter by Scævola is in Bradford's Pennsylvania Journal, Oct. 13, 1773, no. 1610; the first letter by Hamden, on Patriotism, is in id., Oct. 20, 1773, no. 1611. Portrait: Penn (Willliam). Half length, in armor. Inscription: (within the ground, to the left) .tis. 22. 1666. October. 14 (right) Pax Quæritur Bello. (below) S. A. Schoff Sc. From the original portrait of William Penn, which his grandson Granville Penn of Stoke-Poges Esq. presented in 1833, to The Historical Society of Pennsylvania. (right) Wm Penn (fac-simile signature). Line. [New York? 1872.] F°. EM. 2907 Reproduced on a smaller scale in Winsor's Narrative and critical history of America, vol. 3 (Boston, 1884) P. 474. Letter: Finley (Samuel). Princeton, [N. J.,] Apr. 3, 1764. To Eliazar Wheelock, Lebanon, Conn. Wheelock's son, who says he must go home next vacation, will bear this; he has been better able to study this winter, and would have made a fine scholar had he been so all along; David Smith, a former pupil who has been teaching school in Charlestown, S. C., desires an assistant; he has thought of [John] Lathrop and Davies; asks him to find out if Lathrop would go; Kirtland [Samuel Kirkland] has done well; he will try to get him some small assistance, as his means are so strait; he has read Wheelock's Narrative, and commends it; wishes him success in his undertaking; Wheelock's son will make no mean figure in the ordinary time, if he has health, but if he is to be his father's successor he should be better than common. A. L. S. 8°. 2 pp. EM. 2908 Letter: Davies (Samuel). Hanover, [Va.,] Sept. 14, 1758. To Caleb Smith, Nassau Hall [Princeton]. As the Presbytery has just broken up, and Mr. Smith is about to set out, he has no time to write at large to any of the trustees, though sensible of the honor they have done him [in offering him the presidency of Princeton College]; Mr. Smith can state his sentiments; he was never so much at his wit's end; having no guide |