December 15th, 1692-31 enabled the treasurer "to levy all such sum or sums of money by distress and sale of such defective constable or collector's goods and chattels, returning the overplus (if any there be), and for want of such distress to commit. the offender to the common gaol of the county;" and, beginning with the act of June 18th-20th, 1694-5,' the following acts add the phrase, “there to remain until the full payment be made." The further security of making every town responsible for any defect in the returns of its constables, which was included in the acts of December 15th, 1692-3, and June 18th-20th, 1694-5, was, for some reason, perhaps through oversight, not again repeated until the general act of March 20th, 1699-1700.3

At first the treasurer sent his warrants for assessments and collections directly to the assessors and collectors in the different towns; but beginning in 1696, he was required to send them under cover to the sheriff or marshal of each county, who should distribute them forthwith to the assessors and collectors.

$57. Exclusive Taxes.

The mind of the provincial legislator was not always clear as to the real difference between an assessed tax and an excise. The early history of the province of Massachusetts furnishes us with a curious example of this confusion in a group of tax laws, nominally, "for granting unto his majesty an excise upon wines, liquors, and other strong drink sold by retail;" but in reality laying an exclusive income tax-the only attempt at laying an exclusive tax before 1749-'50, when the act of April 20th provided for an exclusive tax upon calashes,

1 1692-'3, c. 41.

2 1694-25, c. 2.

31699-1700, c. 26.

41710-'II, c. 11; 1711-'12, c. 3; 1712-'13, c. 2; 1713-'14, c. 2; 1714, c. 2; 1715-'16, c. 9.

chairs, chaises, chariots and coaches. But this act was, for reasons touching other features of it, disallowed by the English privy council.

It is of the essential nature of those taxes commonly called "indirect," including excises, that, being computed at a fixed per cent. of a variable base, the amount of the tax can be only approximately estimated in advance; while in the case of a "direct" tax, either a fixed percentage of a variable base may be required of the taxpayer, in which case the amount of the tax can be only approximately estimated as before; or an ascertained sum may be demanded of him, irrespective of the ratio which that sum bears to the money value of the property taxed. In each of the six acts above referred to, the general court not only determined the whole sum to be raised by the tax, but apportioned that sum among the counties of the province; delegating to the justices of the respective courts of general sessions of the peace, the power to "levy, lay and duly apportion" the "excise" "according to their good discretion to and upon the several taverners, wineholders, common victualers and retailers within their county." But if these assessments as made were not excises neither were they license fees, even though as in each of these acts the renewing of an old license or the granting of a new one was made contingent upon the assessments being paid, for the amounts of fees are fixed being the same for all persons for the same services rendered or the same privileges granted. In the case of these acts, this was rendered impossible in practice by the apportionment among the counties.

CHAPTER II.

INDIRECT TAXATION.

§ 58. The Organization of Imposts.

The organization of the force for administering indirect taxes in Massachusetts has always been more simple than that of the force for administering direct taxes. The two great departments of indirect taxes in Massachusetts, in the order of their financial importance, have been the imposts (with which may be included tonnage of shipping) and the excises; and in that order we shall take up their history.

* *

The error of the first impost act under the provincial charter1 of introducing into the customs administration a division of responsibility, in providing for the appointment of more than one commissioner," was corrected two years later in an act2 providing "that there be one fit person and no more appointed * * as a commissioner and collector, to have the general inspection, care and management of the said office of impost." From that time until, by the adoption of the federal constitution in 1789, all customs were relinquished by the states to the federal government, the head of the customs administration in Massachusetts was a single officer, though his title was changed by the act of December 9th-10th, 1698,3 to that of "commissioner and receiver." The first act abovementioned' provided for the employment, in addition to the commissioners, of " so many officers under them as they shall find needful." By the act of June 8th-20th, 1694-5,' provision

1 1692-'3, c. 5.

2 1694-'5, c. I.

3 1698, c. 17.

was made for the employment of " so many officers under him as the said commissioner, with the advice of the treasurer for the time being, ** shall think necessary for the well ordering and managing of the affairs relating to said office, and the better to prevent frauds;" by that of December 9th-10th, 1698,' the number of "deputy receivers," as the subordinate officers were now called, was limited to one for each port beside that in which the commissioner resided; by that of March 27th-29th, 1702-3,2 the number of officers was again enlarged to "so many * * as the commissioner shall think needful to assist therein;" while the ultimate form of the subordinate organization of the department was attained when, by the act of December 20th, 1739,3 " a deputy receiver in each port and other places," was authorized.

$59. Commissioners: Appointment; Qualifications.

In the method of the appointment and commissioning of the customs officers, there was but one change under the second charter. The first customs act vested the nomination, appointment and commissioning of the commissioners of impost in the governor and council, and the same act that reduced the number of commissioners to one3 vested the nomination and appointment of that officer in the general court, while his com mission only was to issue from the governor. From the begin ning each commissioner selected his own subordinates, although when the number of commissioners was reduced to one the advice of the provincial treasurer was at least nominally essential to the choice, a limitation which was abandoned in 1698.*

No act prescribed qualification for either commissioners or subordinates, the question of fitness being left entirely to the 1698, c. 16.

2 1702-'3, c. I.

3 1739-40, c. 13.

41692-23, c. 5.

5 1694-'5, c. I.

6 The last act in which it was required was 1698, c. 16.

judgment of the appointing authority. The initial customs act of the second charter1 required that the commissioners and all officers employed by them be sworn "to deal truly and faithfully" in the execution of their duties; the reformatory act of June 8th-20th, 1694-5,2 declared that "the commissioners and all other under officers, before their entering upon the execution of their respective offices, shall take the oaths appointed to be taking instead of the oaths of supremacy and allegiance, and repeat and subscribe the declaration,*** as also shall be sworn to deal truely and faithfully in the execution of their respective offices;" but with the act of June 18th-19th, 1697, the simple oath "to deal truly and faithfully therein" was restored to a permanent place in the impost laws.

$ 60. Duties of Commissioners.

The only duty specified in the act of June 24th-28th, 1692-31 as devolving upon the commissioners was that "to account with the treasurer for all their collections;" the reformatory act of June 8th-20th, 1694-5,2 required the commissioner "to keep fair books of all entries and duties arising by virtue of this act, which books shall be open at all seasonable times to the view and perusal of the treasurer. And the said commissioner shall also account with the treasurer, upon oath, for all monies and payments at the end of every three months; the said oath to be administered before the governor and council, and pay in all such monies as shall be in his hands as the treasurer shall demand it." The important act of June 18th-19th, 1697, omitted the spectacular episode of the second oath before the governor and council, required an accounting as often as the treasurer should demand it and re

1 1692-'3, c. 5.

2 1694-25, c. I.

The reference is to certain oaths and a declaration provided for in an act of parliament of I. William and Mary, entitled "An Act for Abrogating the Oaths of Allegiance and Supremacy and appointing other oaths," and mentioned in the provincial charter of Massachusetts.

4 * 1697, c. 3.