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 then 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 *full operation of 257 * the power of taxation, equally as the people of New York or Massachusetts. But the court held, that Congress are not bound to, 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 burden. But it was understood that Congress were 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 was admitted to be most convenient, for the expense of assessing and collecting a tax in a territory, as the Northwest Territory, for instance, then existed, might exceed the amount of the tax. Here was an anomalous case in our government, in which representation and taxation were 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.

Right of

to Indian land.

(4.) Congress have the exclusive right of preemption domain as to all Indian lands lying within the territories of the United States. This was so decided in the case of Johnson v. M'Intosh. (a) Upon the doctrine of the court in that case, and in that of Fletcher v. Peck, (b) the United States own the soil, as well as the jurisdiction of the immense tracts of unpatented lands included within their territories, and of *258 *all the productive funds which those lands may hereafter create. The title is in the United States by the treaty of peace with Great Britian, 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 (c) 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

(a) 8 Wheaton, 543. (b) 6 Cranch, 142, 143.

(c) Art. 4, sec. 3.

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 under the constitutional power; 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 *259 debate, but not to vote, in the House of Representatives. (a)

The unpatented lands belonging to the United States, within the states of Ohio, Indiana, Illinois, Michigan, and the territory of Wisconsin, arose from cessions from the states of Virginia, Massachusetts, Connecticut, and New York, before the adoption of the present constitution of the United States. (b) North

(a) Ordinance of Congress of 13th July, 1787. Acts of Congress of August 7th, 1789; January 14th, 1805; March 3d, 1817; February 16th, 1819; April 24th, 1820; March 30th, 1822. The acquisition of the foreign territories of Louisiana and Florida by the United States, by purchase, was to be supported only by a very liberal and latitudinary construction of the incidental powers of the government under the constitution. The objections to such a construction, which were urged at the time, are stated in 3 Story's Comm. 156–161. But the constitutionality of the acquisition of foreign territory is vindicated, established, and settled by the Supreme Court, as one necessarily flowing from the power of the Union to make treaties. American Ins. Co. v. Canter, 1 Peters's U. S. Rep. 511. It belongs, therefore, upon that principle, exclusively to the President, with the advice and consent of two thirds of the members of the Senate present, to make the acquisition. But in 1845, Congress, by joint resolution, under the power in the constitution, (art. 4, sec. 3,) that "new states may be admitted by the Congress into this Union," admitted the foreign and independent state of Texas into the Union as a separate state, upon terms to which Texas afterwards acceded. Resolution of Congress of March 1, 1845. This was giving a new legislative construction, of enormous efficacy and extent, to the constitutional power to acquire foreign states, and would appear to be contrary to the principle of construction recognized by the Supreme Court, that the annexation of foreign states out of the limits of the United States, must be the act of the treaty-making power.

(b) That of New York was made March 1st, 1781, under the authority of the Act of the legislature of that state, of the 19th February, 1780. That of Virginia was made March 1st, 1784, under the authority of an Act of the 20th December, 1783. That of Massachusetts, on the 19th of April, 1785, under the authority of the Acts of that state, of 13th November, 1784, and 17th March, 1785; and that of Connecticut, on the 14th September, 1786, under the authority of an Act of that state, of May, 1786. That of South Carolina, in August, 1787. The title to the lands belonging to the United States west of the Mississippi is supported by treaties made with Great

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 recognized. 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 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." (a) It was stipulated by Congress, in the last Resolution, that the lands to be ceded should be disposed of for the common benefit of the United States; be settled and formed into distinct republican states, with a suitable extent of territory; become members of the American Union, and have the same rights of sovereignty, freedom, and

independence, as the other states. It was likewise pro*260 vided by the ordinance of July 13th, 1787, for the gov ernment of the territory of the United States northwest of the river Ohio, that the legislatures of the districts or new states to be erected therein, should "never interfere with the primary

Britain, in 1783, 1818, 1827, and with France, in 1803, and with Spain, in 1820, and with Mexico, in 1831. Vide Elliott's American Diplomatic Code, Washington, 1834, 2 vols., which is a most valuable compilation of all the treaties down to that date, in which the United States have any interest.

(a) Journals of the Confed. Congress, vol. vi. pp. 123, 147. 259. Ibid. vol. ix. p. 47. Ibid. vol. x. p. 92. Ibid. vol. xi. p. 160.

Ibid. vol. viii. pp. 256,

Ibid. vol. xii. p. 92.

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." (a) 1

1

public rec

(5.) By the constitution of the United States, Con- Effect of gress were, by general laws, to prescribe the manner ords. 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 26th, 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, (b) 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

(a) For disposing of the lands of the United States, numerous land offices have been established by Acts of Congress, in the states of Ohio, Indiana, Illinois, Missouri, Louisiana, Mississippi, Alabama, Michigan, and Arkansas, and in the territories of Wisconsin, Iowa, and Florida. See Gordon's Digest of the Laws of the United States, 1837, pp. 321-389, in which all the statute provisions relative to the disposition of the public domain of the United States are collected, and clearly and neatly arranged and digested. By the Act of Congress of September 4th, 1841, c. 16, ten per cent. of the net proceeds of the sales of the public lands, to be made subsequent to the 31st of December, 1841, within the limits of the states of Ohio, Indiana, Illinois, Alabama, Missouri, Mississippi, Louisiana, Arkansas, and Michigan, were to be paid to those states respectively; and the residue of those net proceeds, subject to certain provisos, should be divided, half-yearly, among the twenty-six states of the Union, and the District of Columbia, and the territories of Wisconsin, Iowa, and Florida, according to their respective federal representative population, as ascertained by the last census, to be applied by the legislatures of the said states to such purposes as they should direct. (b) 7 Cranch, 481.

1 Although the Act of Congress, May 1, 1820, prohibits the purchase of lands on account of the United States, except by special law, yet the United States may acquire the legal title to land taken as the security of a debt. Neilson v. Lagow, 12 How. U. S. 98.

2 By Act of Congress of March 27th, 1804, (2 U. S. Statutes at Large, 299,) it was enacted that the provisions of the Act of 1790 shall apply to the territories of the United States, and the countries subject to the jurisdiction of the United States.

3 And in all the other domains of the United States which have since then either been erected into territories or admitted as states.