"The intention of the Legislature was plainly to tax the transmission of property by devise or descent to collateral kindred; to require that the party thus taking the benefit of a civil right secured to him under the law, should pay a certain premmium for its enjoyment; and as it was thought just and reasonable that the amount of the premium should bear a certain proportion to the value of the subject enjoyed, it was fixed at a certain percentage upon the value of the whole estate transmitted.... The right to take property by devise or descent is a creature of the law and secured and protected by its authority. The legislature might, if it saw proper, restrict the succession to a descedent's estate either by will or descent to a particular class of his kindred, say to his lineal descendants and ascendants; it might impose terms and conditions upon which collateral relatives may be permitted to take it, or may to-morrow, if it pleases, absolutely repeal the statute of wills and that of descents and distributions and declare that, upon the death of a party his property shall be applied to the payment of his debts and the residue appropriated to public uses."

Thus was announced what always has been and is now the power of the State regarding property rights as affected by death. The extent to which this power may be carried depends absolutely upon the will of the people to whom legislatures are accountable. These principles have been sustained by an unbroken line of decisions by the Supreme Court of the United States. Thus in the case of the United States vs. Perkins (163 U. S., 625), the court said that: "While the laws of all civilized states recognize in every citizen the absolute right to his own earnings and to the enjoyment of his own property during his life, except so far as the State may require him to contribute his share for public expenses, the right to dispose of his property by will has always been considered purely a creature of statute and within legislative control. . . . Though

And in the case of Plummer vs. Coler (178 U. S., 115), the Supreme Court again said: "A State may deny the privilege of inheritance or transmission by will altogether."

From the above it must be clear that the right to tax the transmission of property from the dead to the living is based upon the fundamental proposition that the State has the right to claim all property or any portion thereof which passes out of the possession of an individual by reason of death, unless waived by statutory expression, and that when that right is waived the waiver may be upon such terms as the State may determine. Herein is pointed the road which legislative bodies may travel in the future, in meeting a growing demand among the people for legislation attempting, at least, to control or limit the accumulation of wealth.

The constitutionality of succession or inheritance tax laws has been questioned in nearly, if not quite, all the States in which they have been enacted. With few exceptions their constitutionality has been affirmed, and it is now generally recognized that under the ordinary State constitution the State has the right to impose or provide for inheritance taxes.

The constitutionality of the Federal inheritance tax laws has also been much in question, on the ground that, while each State can legally enact such laws on the theory that the State has the exclusive right to legislate upon property rights and concerning descent and distribution, the Federal government cannot legally enact them since it has nothing to do with the devolution or passing of property at death, the control of such matters being

retained by the States inasmuch as it was not specifically delegated to the general Government. The validity of the Federal tax has also been attacked on the ground that it is a direct tax and must be apportioned among the various States. But the Supreme Court has held this contention untenable inasmuch as the tax is an excise er indirect tax the only requirement as to which is that it must be uniform.

Upon the contention that the general Government has no right to impose a death duty because it has no power to regulate the transmission of property by will or descent, there is nothing clearer and more to the point than the decision of the Supreme Court in the case of Knowlton vs. Moore (178 U. S.,41), the opinion having been given by Mr. Justice White. The particular contention of counsel for Knowlton, the plaintiff, is stated in this wise: If the taxes were not direct they were levied on rights created solely by the State law, depending for their continued existence on the consent of the several States, a volition which Congress has no power to control, and as to which it could not, therefore, exercise its taxing authority. In the opinion of the court, after referring to the centuries of time during which death duties have been exacted, Mr. Justice White disposes of the question in these words:

"This proposition denies to Congress the right to tax a subject matter which was conceded to be within the scope of its power very early in the history of the government. The act of 1797 which ordained legacy taxes was adopted at a time when the founders of our Government and framers of our Constitution were actively paritcipating in public affairs, thus giving a practical construction to the Constitution which they had helped to establish. . . . Courts which maintain this view have, therefore, treated death duties as disenthralled from limitations which would otherwise apply if the privilege of regulation did not exist. . . . All courts and all governments, however, as we have already shown, conceive that the

transmission of property occasioned by death, although differing from a tax on property as such, is nevertheless a usual subject of taxation. Of course in considering the power of Congress to impose death duties we eliminate all thought of a greater privilege to do so than exists as to any other form of taxation, as the right to regulate successions is vested in the State and not in Congress. It is not denied that, subject to compliance with the limitations in the Constitution, the taxing power of Congress extends to all usual objects of taxation. Indeed, as said in the License Tax cases (S. Wall. 462), after referring to the limitations expressed in the Constitution, 'Thus limited and thus only it (the taxing power of Congress) reaches every subject and may be exercised at discretion.' The limitation which would exclude from Congress the right to tax inheritances and legacies is made to depend upon the contention that as the power to regulate successions is lodged solely in the several States, therefore Congress is without authority to tax the transmission or receipt of property by death. .. But the fallacy which underlies the proposition contended for is the assumption that the tax on the transmission or receipt of property occasioned by death is imposed on the exclusive power of the State to regulate the devolution of property upon death. The thing forming the universal subject of taxation, upon which inheritance and legacy taxes rest is the transmission or receipt, and not the right existing to regulate. In legal effect then, the proposition upon which the argument rests is that whenever a right is subject to exclusive regulation by either the Government of the United States on the one hand or the several States on the other the exercise of such rights as regulated can alone be taxed by the Government having the mission to regulate. But when it is accurately stated the proposition denies the authority of the States to tax objects which are confessedly within the reach of their taxing power, and also excludes the national Government from almost every

subject of direct and many acknowledged objects of indirect taxation. Thus imports are exclusively within the taxing power of Congress. Can it be said that the property when imported and commingled with the goods of the State cannot be taxed because it had been at some prior time the subject of exclusive regulation by Congress? Again inter-state commerce is often within the exclusive regulating power of Congress. Can it be asserted that the property of all persons or corporations engaged in such commerce is not the subject of taxation by the several States because Congress may regulate commerce ? Conveyances, mortgages, releases, pledges and, indeed, all property and the contracts which may arise from its ownership, are subject more or less to State regulation, exclusive in its nature. It cannot be doubted that the argument when reduced to its essence demonstrates its unsoundness, since it leads to the necessary conclusion that both the National and State Governments are divested of those powers of taxation which from the foundation of the Government admittedly have belonged to them."

own

The same Court in a number of other cases has affirmed the constitutionality of such laws from every view-point, these decisions going back to an early period in the existence of this Government.

From the foregoing it will be seen that the right resting in the National Government to impose and collect legacy taxes is based upon a different ground than that which sustains the right of the State to impose and collect a similar tax. But the right to impose such a tax being admitted, it follows then from the decisions of the courts that the general Government has this right because of the fact that the tax is a usual one and one of long standing.

The constitutional provision for the levy and collection of inheritance tax is found in Section VIII. of the Constitution of the United States which gives Congress "power to levy and collect taxes, duties, imposts and excises... but all taxes, duties, imposts and excises shall be uni

form throughout the United States." So, while the general Government cannot legislate to change the Law of Succession in any State, it can tax the succession as being one of the usual objects of taxation.

The Inheritance Tax Act of 1898 was in force for four years, and since its enactment there has been collected the sum of $22,378,053.61 as tax. Part of this has been refunded, however, following legislative and judicial constructions of the original law.

While, as first stated, a Federal inheritance tax law has been regarded, generally, as a war-revenue measure, it is now being widely discussed as a means of producing revenue for the ordinary expenses of the Government, to the end that changes in the taxing system may be made, when necessary, to accommodate the changing needs of this rapidly developing country, without decreasing the revenues or causing disturbances in the business system; and many economists regard this tax highly because of its tendency towards the distribution of wealth and because of the power which rests in the Government, through such a tax properly graduated, to regulate or prevent the undue concentration of capital through the practical entailing of fortunes for generations.

The inheritance tax has been approved generally by writers upon political economy and systems of taxation, and it is almost universally held that no tax can be less burdensome, or interfere less with the productive and industrial agencies of society.

Such tax laws have demonstrated thoroughly their utility as a successful means of raising revenue, and many eminent economists urge them in their utmost severity as conducive to the public good.

Mr. Cooley appears to be the only eminent law writer who has objected to legacy taxes, and his objection was against them because they might be made so heavy as to increase the embarrassments which usually come, at death, to the relatives of the deceased.

Under the Tax Act of 1898, exempting

legacies or distributive shares of less than ten thousand dollars, that objection would not apply. Neither would that objection apply to a graduated legacy tax with an exemption taking out of the taxable list legacies of less than three or five thousand dollars each.

Mr. Dos Passos, one of the greatest authorities on inheritance tax laws, in his work on this subject, after stating that real property bears the brunt of direct taxation, says:

"Personal property, however, in proportion to its immense value, generally escapes the hands of the collector, and in some localities, especially in large cities, to an alarming extent. . . . A collateral or direct inheritance, legacy or succession tax, it seems, presents the most complete system for reaching the class of personal property and privileges which it is framed

to embrace, because its collection is aided and facilitated by the requirement of the law, that the dead man's property, so to speak, shall somewhere and at some time pass through, either a Surrogate or Probate Court, as the case may be, for settlement and distribution.'

Experience has demonstrated the comparative ease with which this tax can be collected, and the exceedingly small percentage of cost in its collection.

Although a tax of this character is opposed by some individuals of large wealth, apparently from selfish motives, there has yet to be made a sound legal, moral or economic argument against the enactment and enforcement of such a tax law. Expediency and political good judgment all seem to be in its favor.

ARTHUR B. HAYES.

Washington, D. C.

I

IN THE history of the English stage-a history enriched by many illustrious names and memorable achievements, the name of Minnie Maddern Fiske will be written with that select company of great dramatic artists who take the highest rank. She has done notable workwork distinguished for brilliancy, for finish, for intellectual power, subtle perception of character and a wide range of interpretation, sounding as it does the depths of tragedy, and sparkling with most delicate, vivacious comedy-work distinguished for strength and depth of original thinking, for sincerity and earnestness of feeling, and most potent sympathetic appeal; above all, manifesting in every phase that imaginative fire and glow, that subtle, illusive quality which can be described by no other word but "genius."

Mrs. Fiske's genius is unique and individual. She is distinguished for qualities of mind, of artistic method, and of personality and temperament which make it impossible to do justice to her by comparison with any actress of the past or with any famous contemporary. We may compare others to her, for she has many imitators, but the top of the mountain where she stands is not peopled by many companions. Greatness is always solitary.

The most superficial observer of the conditions of our stage must acknowledge that Mrs. Fiske's work as it stands to-day, and as it gives promise of the future is something to be reckoned with as a force in American art.

The explanation of this is to be found in her personality; her influence upon other

actors; her faculty for leadership; her courageous fight against commercialism in art, as well as in her own artistic work during her long career upon the stage.

No one can meet Mrs. Fiske without acknowledging that he is in the presence of a great personality. There are no affectations about her manner, there is no posing, no talking for effect, no aggressive enforcement of strong opinion; but one feels that her opinions have weight and authority. Her dignity and earnestness win respect, and she possesses that simplicity and absence of self-consciousness which are only possessed by one who has high standards.

In talking with Mrs. Fiske you feel as if you knew what her work would be-work permeated with intellect, yet full of spiritual beauty, sparkling with brilliancy of with irradiated with delicate, alluring humor, touched with the fire of imagination, instinct with tragic power, softened wit, true and tender feeling. In the woman herself is the artist. Her artistic method is the visible expression of a peculiarly rich mental and spiritual equipment.

And in the versatility of her work, its wide scope, we have an index to her character. No one whose nature was not many-sided, whose intellect was not broad as well as deep, and whose tastes were not cultivated in many directions could give us such versatile work in the drama.

Mrs. Fiske's life naturally divides itself into two parts. Her career before her retirement at the time of her marriage to Harrison Grey. Fiske, and her career after she once more took up her dramatic work. The second period is, of course, the more important, because to it belong her memorable portrayal of Ibsen's Nora, and her three great impersonations of Tess, of Becky Sharp and of Mary of Magdala; but the power, the finish, the authority of her later work could not have been possible without the long and arduous training, the wide and varied experience, the strenuous industry of her youthful years. This early apprenticeship taught her the technique of her art, but it did more. It broadened her thinking, enlarged her capacities for feeling, deepened her powers of sympathy. She had fought, been con