for the courts, and with these come also a long train of officers and

expenses.

To confer property and protect it, to defend the life and liberty of the citizens, necessarily involves large sums of money, and without money none of the rights, duties, responsibilities or obligations of the government could be carried out. Money, therefore, is not an incident to government, but a necessity. Taxes are not the charitable donations of citizens, to be given or withheld at pleasure; are not mere political duties that the citizen may or may not discharge at his option, but are high moral obligations, based upon considerations of immense value.

Therefore, every citizen of a State is called upon to furnish his pro rata share towards the expenses of his Government, and when the share of each has been ascertained and set down to him, his personal and moral honesty is involved in its discharge. He can contract no debt to his merchant, or other person, based upon a higher consideration or involving in its discharge a greater moral responsibility. We venture the assertion, that if a list of the defaulting taxpayers could be made out, and the moral character of each analyzed, or even their general reputation among their neighbors ascertained, that the result would show that eight-tenths of them are men who are not esteemed as honest, and are men whom their neighbors would not permit to become the administrators of their estate or the guardians of their children. Government is felt to be a necessity, and men recognizing this have banded themselves together under Government in some one of its forms, and each has impliedly agreed that he will contribute his proportional part towards paying off its costs and expenses, and he who refuses to do so is false to those who have trusted his government, base to the government, and deserves the odium of all his fellow-citizens, whom he has betrayed. He is recreant to his moral obligations, to the creditor of the government, a breaker of all his political faith to his government, and bankrupt in his social obligations to his fellow-citizens. He should not be trusted in a common venture of a dozen. We have allowed ourselves to be carried off from the original intention and legitimate object of this article, in a denunciatory pursuit of a class of men who are annually growing more numerous, with the hope that the public morals, now so enfeebled, may become energized, and that these men who are passing through society as good citizens may be detected, pointed out and spurned; and that all squeamishness about tax titles may be done

away with, and that each citizen may feel as free to buy a parcel of land sold for taxes, and the court as swift to condemn it, as either would be, if the sale was asked or had for the purpose of selling the debtor's land to pay a merchant's bill or a lawyer's fee.

If all the acts of the Legislature passed on the subject of sale of lands for the non-payment of taxes could be brought before the eye of a single reader, it would be sufficient amusement for the time to be allowed to set silently by and watch the emotions that would express themselves in an honest tell-tale face, and we should be greatly surprised if he did not lay down the collection with feelings akin to the views of a man who had waited an hour in watching a pack of terriers and boys catching rats: "Well, boys, you did catch SOME, but some got away!"

In legislating upon nearly every other subject upon which our modern legislators are called to act, except that of the sale of land for the payment of taxes, the rules and principles directly applicable may be drawn from the grand old store-house of the common law, and this may in some degree account for the character of legislation that has controlled this subject. Neither the courts nor the legislatures have had the benefit of a common law back-ground upon which to lay down the statute, ascertain its defects, and simply adapt, to present conveniences, a building already built. Therefore, we will be justified in the assertion, that legislation and judicial decisions upon this subject, bear strong marks of "original originality." In verification of this, let us take one act of the Legislature and two decisions of the Supreme Court of Tennessee.

In passing the Act in question, the Legislature seems to have been driven to a desperate point, and to have made up its mind to hold the defaulters to the condemnation and sale, and therefore, by an Act passed January 18, 1844, (See Nicholson's Supplement, page 259,) it provided: 1st. That, in order to make a sale of land made for taxes valid, and communicate a good title, it must appear that the land lies in the county in which it has been reported; 2d. That it has been duly reported; 3d. That an order of sale has been awarded; 4. That the sale of the land was duly advertised; 5. And the sheriff's deed reciting all these facts shall be prima facie evidence of their existence; 6. All judgments or orders of sale shall be conclusive, unless the person wishing to show the irregularity of the same can prove that the taxes were duly paid before such judgment or order of sale was rendered. Certainly, the land could not have been "duly reported'

VOL. I.-3

if the taxes had already been paid. After the passage of this Act, we may well suppose that no man will allow his land to be sold for taxes; but if any should do so, such will have but one attitude in which to attack the judgment, viz: by showing that the taxes had been paid, and therefore fasten malice or great negligence upon the officer whose duty it was to report it to court. This, we presume, is the only stand-point from which the court will permit him, now, to assail the judgment or order of sale; and so the Circuit Judge charged a jury in the case of Tharp vs. Hart, 2 Sneed, 569; and the Supreme Court, in commenting upon this charge, (Totten dissenting) say: "Tax sale titles had become so proverbially worthless, on account of the strictness required in the proceedings, that the collectors of the public revenue were seriously obstructed for want of bidders, and the owners of land became entirely indifferent about the payment of their taxes. Thus, vast quantities of land remained untaxed from year to year, and the owners, with impunity, avoided their just share of the public burdens. This strong statute was evidently intended by the framers to preclude the land-holder, who is in default, from taking advantage of these irregularities and defects in the proceeding, which had been previously regarded by the courts as sufficient to award the title to the purchaser. This would give confidence to bidders, and ensure the collection of the State and county taxes, and thereby remedy the existing evil." Speaking of the defaulter, the Court say: "He shall not, to the injury of one who has bought the land at a public judicial sale, and thus paid his taxes for him, and which he has not refunded by redemption, invalidate the sale and title by technical objections. He does not stand in a condition to be favored, as he has not complied with his obligations to the government whose protection he has enjoyed. Against him the judgment and order of sale are made conclusive. charge of the Circuit Judge must be sustained, or the plain language of the law disregarded. The judgment and order of sale are made conclusive against the plaintiff until he can show that his taxes had, in fact, been paid; and then, and not before, can he be heard to make objections to the regularity of the proceedings under which the defendant became purchaser of the land."

The

This opinion certainly echoes the sentiment that actuated the passage of the law, and indicates the reasons and principles upon which taxes are levied and collected, and justly visits upon the defaulter the penalty of his neglect. The next case to which we shall

refer is the case of Henderson vs. Starett, 4 Sneed, 470. The action. was ejectment; the defendant had bought the land at a tax sale, and was in possession. On the trial, the defaulting tax-payer offered to read the advertisements of tax sales under which the land was bought, to show that the description given in the advertisement did not sufficiently describe the land. The court below decided "that the irregularity of the sale could not be shown unless the plaintiffs first showed that the taxes had been duly paid on the land; and that not having been done, the evidence was ruled out."

This cause was likewise carried to the Supreme Court, and that Court say: "We held in Tharp vs. Hart that the validity of the judgment and order of sale in tax sales could not be impeached, unless it was first shown that the taxes had in fact been paid before the judgment of condemnation. This does not expressly embrace the advertisement and sale. Before that Act, (1844, cited above,) all the proceedings were open to attack, without any condition or limitation; and by it we think, upon a fair construction, the law is only changed so far as to make the judgment and order of sale, and of course all previous proceedings, conclusively correct, unless it be shown the taxes were paid anterior to such judgment." But not so as regards matters occurring subsequent, such as advertisements, etc.-these are all open to attack, say the Court.

This decision, it will be admitted, whittles the matter down to a very fine point, and reminds one of the charge of a Circuit Judge to a jury, upon the question whether or not a married woman could. make a valid legal contract of debt. The Judge told the jury that he must tell them that the law was, that "a married woman could not make a binding legal CONTRACT, by which she could charge herself with a debt; but, gentlemen, I must also say in this connection, that I think a married woman could have an UNDERSTANDING with a party, and thereby bind herself to pay a debt."

Imprisonment of the delinquent, distress of goods and chattels, were the modes of the common law for collecting taxes. Auxiliary to these were some Exchequer proceedings, of which, practically, we know but little; and none of our elder law writers, Kent and others, have contributed anything directly, or very little, to elucidate this subject. These two facts have doubtless contributed largely to the conflicting decisions of the various States, and not unfrequently of the courts of the same State, and also to much of the loose legislation which has been had upon this subject. Until recently, there

has been no common source to which all might apply, and by comparison and addition, from time to time, build up a system of laws and decisions consistent and harmonious, and so plain and intelligent that any ordinary capacity could compass it. Heretofore the statutes have been framed under the influence of some local policy; and this same policy has entered largely into their construction, (see 14 Peters, 322,) and the statute has been materially altered by almost every succeeding Legislature; and therefore, the judicial decisions have been merely constructions of statutes, and may be regarded merely as the law of the case decided, and are not esteemed by the profession as doing much more. And yet, in this bewilderment and uncertainty, the courts have continually held these statutes to be rules of property; and in theory this is still true, even in those States the courts of which have never sustained a single tax title.

The exorbitant extent to which the debts of many of the States, counties and municipalities have been carried, and the consequent necessity for a high rate of taxation, at a time when the Federal Government has made itself a dormant partner in the profits of every man, indicate this as a proper time to look into the question of legislative power, and constitutional limitations of these powers. A profound statesman (see Federalist, No. 30,) gave as a reason why government, by implication, had the power of taxing its citizens, was to protect the citizen from "continual plunder," to which he would be exposed by the necessities of the government and the exorbitant greediness of its officers and agents. This is regarding the government as a substitute for banded robbery, against which the citizen could not defend himself, and which found its illustration in the levies and war taxes imposed upon the citizen by the armies of the late civil war. We do not so regard either government or the right of taxation. The whole theory and right are based upon consideration, moral, social and pecuniary; and because it is government, and acknowledged head; and the government which shields my property from the rapacity of my neighbors, can not be construed to be a substitute for unlawful power, and entitled to commit the same acts of plunder, only under a different mode and name. Government itself, does not and should not refer the question of taxation to mere power, but enters upon its rightful and delicate duties under recognized rerestrictions, viz:

1. Revenue bills must originate in the most popular branch of the General Assembly.