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and in one state there were 100 carriages, and in the other 1,000, the owners of carriages in one state would pay ten times the tax of owners in the other. Wbile A, in the one state, would pay for his carriage eight dollars, B., in the other state, would pay for his carriage eighty dollars. In this way, it was shown by the court, that the notion that a tax on carriages was a direct tax, within the purview of the constitution, and to be apportioned according to the census, would lead to the grossest abuse and oppression. This argument was conclusive against the construction set up, and the tax on carriages was considered as included within the power to lay duties, and the better opinion seemed to be, that the direct taxes contemplated by the constitution, were only two, viz. a capitation, or poll tax, and a tax on land. The court concluded, that a tax on carriages was an indirect tax on expense or consumption, and, therefore, properly laid, pursuant to the rule of uniformity.
In Loughborough v. Blake," the power of taxation was again brought under judicial discussion. The question was immediately of a local nature, and it was whether Congress had the right to impose a direct tax upon the unrepresented District of Columbia ; but there were principles involved in the decision, which had an extensive and important relation to the whole United States.
It was declared, that the power to tax extended equally to all places over which the government extended. It extended as well to the District of Columbia, and to the territories which were not represented in Congress, as to the rest of the United States. Though duties were to be uniform, and taxes were to be apportioned according to numbers, the power was coextensive with the empire. The inhabitants of the territories of Michigan, and of Florida and Arkansas, for instance, as well as the District of Columbia, though without any representation in Congress, were subject to the
a 5 Wheaton, 317.
full operation of the power of taxation, equally as the people of New-York or Massachusetts. But the court held, that Congress are not bound, though they may, in their discretion, extend a direct tax to the territories as well as to the states. A direct tax, if laid at all, must be laid on every state conformably to the census, and, therefore, Congress has no power to exempt any state from its due share of the burthen. But it is understood that Congress are under no necessity of extending a tax to the unrepresented District of Columbia, and to the territories; though, if they be taxed, then the constitution gives the rule of assessment. This construction must be admitted to be most convenient, for the expense of assessing and collecting a tax in a territory, as the North West Territory, for instance, might exceed the amount of the tax. Here is an anomalous case in our government, in which representation and taxation are not inseparable, though the principle that the power of taxation could not rightfully exist without representation, was a fundamental ground of our revolution. The court did not consider a departure from a general principle, in this case, to be very material or important, because the case was that of territories which were in a state of infancy, advancing to manhood, and looking forward to complete equality, as soon as that state of manhood should be attained. It was the case also of the District of Columbia, which had voluntarily relinquished the right of representation, and adopted the whole body of Congress for its legitimate government.
(4.) Congress have the exclusive right of pre-emption to right of doall Indian lands lying within the territories of the United Indian lands. States. This was so decided in the case of Johnson v. M'Intosh. Upon the doctrine of the court in that case, and in that of Fletcher v. Peck, the United States own the soil, as well as the jurisdiction, of the immense tracts of unpatented lands, included within their territories, and of
b 6 Cranch, 112, 113.
a 8 Wheaton, 543. VOL. I.
all the productive funds which those lands may hereafter create.
The title is in the United States, by the treaty of peace with Great Britain, and by subsequent cessions from France and Spain, and by cessions from the individual states; and the Indians have only a right of occupancy, and the United States possess the legal title, subject to that occupancy, and with an absolute and exclusive right to extinguish the Indian title of occupancy either by conquest or purchase. The title of the European nations, and which passed to the United States, to this immense territorial empire, was founded on discovery and conquest; and, by the European customary law of nations, prior discovery gave this title to the soil, subject to the possessory right of the natives, and which occupancy was all the right that European conquerors and discoverers, and which the United States, as succeeding to their title, would admit to reside in the native Indians. The principle is, that the Indians are to be considered merely as occupants, to be protected while in peace in the possession of their lands, but to be deemed incapable of transferring the absolute title to any other than the sovereign of the country. The constitution gave to Congress the power to dispose of, and to make all needful rules and regulations respecting the territory, or other property belonging to the United States, and to admit new states into the Union. Since the constitution was formed, the value and efficacy of this power have been magnified to an incalculable extent, by the purchase of Louisiana and Florida ; and, under the doctrine contained in the cases I have referred to, Congress have a large and magnificent portion of territory under their absolute control and disposal. This immense property has become national and productive stock, and Congress, in the administration of this stock, have erected temporary governments under the provisions of the ordinance of the Congress under the confederation; and they have appointed the officers to each territory, and allowed delegates in Congress to be chosen by the
inhabitants every second year, and with a right to debate, but not to vote, in the house of representatives."
The unpatented lands belonging to the United States, within the states of Ohio, Indiana, Illinois, and the territory of Michigan, arose from cessions from the states of Virginia, Massachusetts, Connecticut, and New-York, before the adoption of the present constitution of the United States. North Carolina, South Carolina, and Georgia, made similar cessions of their unpatented lands, and which now compose the states of Tennessee, Alabama, and Mississippi. The lands so ceded, were intended to be, and were considered, as constituting a common fund, for the benefit of the Union; and when the states in which the lands are now situated were admitted into the Union, the proprietary right of the United States to those unimproved and unsold lands was recognised. Those lands belong to the United States, as part of their public domain, subject to the Indian right and title of
occupancy, in all cases in which the same has not been lawfully extinguished. It is not to be concealed, however, that the title of the United States to the unappropriated lands, lying within the limits of the separate states, has been seriously questioned by some of them, as by Mississippi, Illinois, and Indiana. The latter state, in January, 1829, advanced a claim to the exclusive right to the soil and eminent domain of all the unappropriated lands within her acknowledged boundaries; and in 1830 Mississippi put forth a similar claim. But the cessions of the territorial claims of the separate states to the western country, were called for by the resolutions of Congress of the 6th of September and 10th of October, 1780, and were made upon the basis that they were to be “ disposed of for the common benefit of the United States." It was likewise provided by
a Acts of 7th of August, 1789; January 14th, 1805 ; March 8d, 1817; February 16th, 1819; April 24th, 1820.
6 Journals of the Confed. Congress, vol. 6. 123. 147. Ibid. vol. 8. 256. 259. lbid, vol. 9. 47. Ibid. vol. 10. 92. Ibid, vol. 11. 160, Ibid. vol. 12, 92.
Effect of publicrocords.
the ordinance of July 13, 1787, for the government of the territory of the United States, north-west of the river Ohio, that the legislatures of the districts or new states to be erected therein, should “never interfere with the primary disposal of the soil by the United States, in Congress assembled, nor with any regulations Congress may find necessary for securing the title in such soil to the bona fide purchaser."
(5.) By the constitution of the United States, Congress were, by general laws, to prescribe the manner in which the public acts, records, and judicial proceedings of every state, should be proved, and the effect thereof in every other state. In pursuance of this power, Congress, by the act of May 26, 1790, provided the mode by which records and judicial proceedings should be authenticated, and then declared, that they should have such faith and credit given to them in every court within the United States, as they had by law or usage in the courts of the state from whence the records were taken. Under this act it was decided, in the case of Mills v. Duryee, that if a judgment, duly authenticated, had, in the state court from whence it was taken, the faith and credit of the highest nature, viz. record evidence, it must have the same faith and credit in every other court. It was declaring the effect of the record, to declare the faith and credit that were to be given to it. The constitution intended something more than to make the judgments of state courts prima facie evidence only. It contemplated a power in Congress to give a conclusive effect to such judgments. A judgment is, therefore, conclusive in every other state, if a court of the particular state where it was rendered would hold it conclusive. Nil debet is not a good plea in a suit on a judgment in another state, because not a good plea in such state. Nul tiel record is the proper plea in such a case. This same decision was followed in Hampton v. M'Connell, and the doctrine con
27 Cranch, 481.
63 IFheaton, 234.