the feudal tenure by which lands were held arose the notion, which became a fiction of the law, that property, merely personal, always attended the person of its owner; while lands, tenements, and hereditaments, being fixed and immovable, and of infinitely more consideration, were held, from their very nature, as well as from motives of political policy, to have a situs of their own, from which they derived their laws and incidents, wholly regardless of the domicile of the owner. Growing out of the same reasons, it was also the prevailing opinion that, while immovables were exclusively governed by the law of locality, movables were controlled, according to the same maxim, by the law of the domicile of the owner, and not by that of its situs." In the changed condition of wealth and property, such a fiction, however suitable and useful in primitive times, would now, in many cases, work the greatest injustice, and impair the supremacy which every government should maintain over everything within its territory, both on the ground of public expediency and the private interests of its citizens. And, according to Wharton (Treatise on the Conflict of Laws, 1872), this fiction of law has been universally abandoned upon the continent of Europe, except in cases as to rights in respect to personalty which sprang from marriage and succession, and would not, furthermore, in Europe, find a place in any discussion of the principles of taxation, except possibly in a review of curious tax experiences, and for the reason that nowhere, except in the United States, is there any system of extra-territorial taxation, or any tolerance given to the ideas upon which it is founded.
This question of extra-territorial taxation has been raised repeatedly before the highest courts of the United States, and its illegality in respect to visible, tangible property is believed to have been in every instance affirmed.
Thus in the State of New York, up to the years 1861-’62, the rule of assessment of personal property appears to have been in accordance with that now recognized in Massachusetts—viz., that it follows the owner under all circumstances; but in that year a case of much importance was carried up to its Court of Appeals under the following circumstances: One Hoyt was taxed in the city of New York for personal property, and resisted the taxation on the ground that, although he had personal property outside of the State, he had none within the State in excess of his just debts and liabilities; the property in question without the State being capital employed in business in New Orleans, and farm stock and household furniture in New Jersey, each taxable by local law in the States where situated. The Court of Appeals decided the assessment to be illegal, and held (Comstock, C. J.) that the property was actually
