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not to withdraw from it any portion of the community. The words in which those clauses are expressed import this intention. In thus regulating its exercise, a rule is given, in the second section of the first article, for its application to the respective states. That rule declares how direct taxes upon the states shall be imposed. They shall be apportioned upon the several states according to their numbers. If, then, a direct tax be laid at all, it must be laid on every state, conformably to the rule provided in the constitution. Congress has clearly no power to exempt any state from its due share of the burden. But this regulation is expressly confined to the states, and creates no necessity for extending the tax to the district or territo ries. The words of the ninth section do not in terms require that the system of direct taxation, when resorted to, shall be extended to the territories, as the words of the second section require that it shall be extended to all the states. They therefore may, without violence, be understood to give a rule when the territories shall be taxed, without imposing the necessity of taxing them. It could scarcely escape the members of the convention that the expense of executing the law in a territory might exceed the amount of the tax. But be this as it may, the doubt created by the words of the ninth section relates to the obligation to apportion a direct tax on the territories as well as the states, rather than to the power to do so.

If, then, the language of the constitution be construed to comprehend the territories and the district of Columbia as well as the states, that language confers on congress the power of taxing the district and territories as well as the states. If the general language of the constitution should be confined to the states, still the sixteenth paragraph of the eighth section gives to congress the power of exercising "exclusive legislation in all cases whatsoever within this district."

On the extent of these terms, according to the common understanding of mankind, there can be no difference of opinion; but it is contended that they must be limited by that great principle which was asserted in our revolution, that representation is inseparable from taxation.

The difference between requiring a continent, with an immense population, to submit to be taxed by a government having no common interest with it, separated from it by a vast ocean, restrained by no principle of apportionment, and associated with it by no common feelings; and permitting the representatives of the American people, under the restrictions of our constitution, to tax a part of the society, which is either in a state of infancy advancing to manhood, looking forward to complete equality so soon as that state of manhood shall be attained, as is the case with the territories; or which has voluntarily relinquished the right of representation, and has adopted the whole body of congress for its legitimate govern ment, as is the case with the district, is too obvious not to present itself to the minds of all. Although in theory it might be more congenial to the spirit of our institutions to admit a representative from the district, it may be doubted whether in fact its interests would be rendered thereby the more secure; and certainly the constitution does not consider their want of a representative in congress as exempting it from equal taxation.

If it were true, that, according to the spirit of our constitution, the power of taxation must be limited by the right of representation, whence is derived the right to lay and collect duties, imposts, and excises within this district? If the principles of liberty and of our constitution forbid the raising of revenue from those who are not represented, do not these principles forbid the raising it by duties, imposts, and excises, as well as by a direct tax? If the principles of our revolution give a rule applicable to this case, we cannot have forgotten that neither the stamp act nor the duty on tea were direct taxes.

Yet it is admitted that the constitution not only allows, but enjoins, the government to extend the ordinary revenue system to this district.

If it be said that the principle of uniformity, established in the constitution, secures the district from oppression in the imposition of indirect taxes, it is not less true that the principle of apportionment, also established in the constitution, secures the

district from any oppressive exercise of the power to lay and collect direct taxes.

After giving this subject its serious attention, the court is unanimously of opinion that congress possesses, under the constitution, the power to lay and collect direct taxes within the district of Columbia, in proportion to the census directed to be taken by the constitution, and that there is no error in the judg ment of the circuit court.

5 Wh. 325.

Judgment affirmed.

OWINGS v. SPEED AND OTHERS.

FEBRUARY TERM, 1820.

[5 Wheaton's Reports, 420-424.]

In the following opinion of the court,* delivered by Chief Justice Marshall, we have all the facts of this case:

This was an ejectment brought by the plaintiff in the circuit court of the United States for the district of Kentucky, to recover a lot of ground lying in Bardstown. This town was laid off, in 1780, on a tract of land consisting of one thousand acres. for which, in 1785, a patent was issued by the commonwealth of . Virginia to Bard and Owings. In 1788 the legislature of Virginia passed an act, vesting one hundred acres, part of this tract, in trustees, to be laid off in lots, some of them to be given to settlers, and others to be sold for the benefit of the proprietors. The cause depends mainly on the validity of this act. It is contended to be a violation of that part of the constitution of the United States which forbids a state to pass any law impairing the obligation of contracts.

Much reason is furnished by the record for presuming the consent of the proprietors to this law; but the circuit court has decided the question independently of this consent, and that decision is now to be reviewed.

Before we determine on the construction of the constitution in relation to a question of this description, it is necessary to inquire whether the provisions of that instrument apply to any acts of the state legislatures which were of the date with that which it is now proposed to consider.

* Only so much of this opinion is here given as bears on the constitutional question involved in the case.

This act was passed in the session of 1788. Did the constitution of the United States then operate upon it?

In September, 1787, after completing the great work in which they had been engaged, the convention resolved that the constitution should be laid before the congress of the United States, to be submitted by that body to conventions of the several states, to be convened by their respective legislatures; and expressed the opinion, that, as soon as it should be ratified by the conventions of nine states, congress should fix a day, on which electors should be appointed by the states, a day on which the electors should assemble to vote for president and vice-president, "and the time and place for commencing proceedings under this constitution."

The conventions of nine states having adopted the constitution, congress, in September, or October, 1788, passed a resolution in conformity with the opinions expressed by the convention, and appointed the first Wednesday in March of the ensuing year as the day, and the then seat of congress as the place, “for commencing proceedings under the constitution."

Both governments could not be understood to exist at the same time. The new government did not commence until the old government expired. It is apparent that the government did not commence on the constitution being ratified by the ninth state; for these ratifications were to be reported to congress, whose continuing existence was recognized by the convention, and who were requested to continue to exercise their powers for the purpose of bringing the new government into operation. In fact, congress did continue to act as a government until it dissolved, on the first of November, by the successive disappearance of its members. It existed potentially until the second of March, the day preceding that on which the members of the new congress were directed to assemble.

The resolution of the convention might originally have suggested a doubt, whether the government could be in operation for every purpose before the choice of a president; but this doubt has been long solved, and were it otherwise, its discussion would

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