An examination of the Downes case requires the consideration of at least four great leading cases: Loughborough vs. Blake, 5 Wheat. 317, 1820; Insurance Co. vs. Canter, 1 Pet. 511, 1828; Cross vs. Harrison, 16 How. 164, 1853; and Dred Scott vs. Sandford, 19 How. 393, 1856.

In the first three cases the court were unanimous, and in the last case as to the proposition here involved there was no dissent, and as to that proposition the authority of these cases prior to the Downes case had never been denied or questioned. One is directly and two are practically overruled by a disagreeing majority of one.

Loughborough vs. Blake is directly in point. The provision of the Constitution in question was considered by the court, and Mr. Chief Justice Marshall delivered the unanimous opinion in which he said:

The power, then, to lay and collect duties, imposts and excises, may be exercised, and must be exercised throughout the United States. Does this term designate the whole, or any particular portion of the American empire? Certainly this question can admit of but one answer. It is the name given to our great republic, which is composed of states and territories. The District of Columbia, or the territory west of the Missouri, is not less within the United States, than Maryland or Pennsylvania; and it is not less necessary, on the principles of our constitution, that uniformity in the imposition of imposts, duties and excises should be observed in the one, than in the other."

Mr. Justice Brown says these are "certain observations which have occasioned some embarrassment in other cases," but I submit in none so great as in the Downes case. The extraordinary ingenuity manifested in this case by the earnest effort to escape from that authority constitutes one of its most striking features. The learned Attorney General examined the original files, and found that it was uncertain whether the suit related to "one black gelding about nine years old" or

"to ten cows and ten oxen," and therefore it was "scarcely more than a moot case." Upon an analysis of the case he found that "the point argued in the case was whether the District of Columbia *could be taxed, seeing that it had no representative in Congress. That was the question argued and that is what was decided." Although these arguments were presented with all of his accustomed vigor and ability, he does not appear to have succeeded in convincing anybody but himself, as these contentions were not even alluded to by any Justice. Mr. Justice Brown is entitled to the credit of introducing in an opinion for the first time, a new method of disposing of that case. I do not say he discovered it, for it is true that there were statesmen who in groping about for a way of escape from Marshall's logic, had blazed out this path. He admits that the conclusion is correct, "so far at least as it applies to the District of Columbia." He cannot quite get up to denying the case in toto. He then gives the reason why he concedes so much :

"This district had been a part of the States of Maryland and Virginia. It had been subject to the Constitution, and was a part of the United States. The Constitution had attached to it irrevocably. There are steps which can never be taken backward. The tie that bound the States of Maryland and Virginia to the Constitution could not be dissolved, without at least the consent of the Federal and State governments to a formal separation. The mere cession of the District of Columbia to the Federal government relinquished the authority of the States, but it did not take it out of the United States, or from under the ægis of the Constitution."

This reasoning is inconsistent with the theory upon which the whole case is based, i. e., that the "United States" is composed only of "states." We have here a part of the "United States" which is not a state. Therefore, it is quite possible for the term "United States" to include territory outside of the states. "Neither party," he says, "had ever

* Wherever words are printed in italics, only those in which an * is used, are italicized in the original.

consented to that construction of the cession." Inasmuch as the question was never even dreamed of until invoked by the exigencies of this case, it is quite evident that it was not an element of "the cession."

6.

Again, if before the District was set off, Congress had passed an unconstitutional act affecting its inhabitants, it would have been void. If done after the District was created, it would have been equally void; in other words, Congress could not do indirectly, by carving out the District, what it could not do directly." With all due respect to the learned Justice, this illustration suggests a contingency that is impossible. Congress desires to affect certain persons by unconstitutional legislation who now live in a State. This it cannot do. Therefore, it creates the District of Columbia out of the territory on which they live in order that it may legislate with reference to them unrestrained by the Constitution. Could anything be more finical? He says:

"The District still remained a part of the United States, protected by the Constitution. Indeed, it would have been a fanciful construction to hold that territory which had been once a part of the United States ceased to be such by being ceded directly to the Federal government."

Therefore he says the conclusion was right in Loughborough vs. Blake, but the reasons were wrong, mere dicta.

This appears to be the adhesive feature of the Constitution. Like a way appendant or appurtenant, or certain covenants in a deed, the Constitution runs with the land, and is inseparably united thereto. The proposition has the merit of novelty. It is submitted that no sufficient reason is given for its existence, and that it rests upon the unsupported assertion of the learned Justice that it is so. He does not inform us how, but it is. If this adhesive proposition is sound, what becomes of the decision in Hepburn vs. Ellzey? Prior to the creation of the District of Columbia it is clear that any citizen of either State living in the territory afterward made the District, had the constitutional right to bring an action in the Circuit Court of

the United States. Being a constitutional right it "had attached to it irrevocably." Therefore no power could deprive a citizen of the District of that right. It seems that Mr. Chief Justice Marshall, notwithstanding all this, disconnected the citizen in that case from the Constitution. Perhaps he had not heard of this theory, or can it be that only a part of the Constitution adheres? Only so much as is necessary to escape Loughborough vs. Blake? This may be the case, in view of the fact that in 1897 in Hooe vs. Jamieson, 166 U. S. 395, a case turning on the precise point decided in Hepburn vs. Ellzey, the court still persisted in disconnecting a citizen of the District of Columbia from the Constitution, and affirmed Hepburn vs. Ellzey, and Mr. Justice Brown concurred in the opinion. Moreover in the Downes opinion he cites with approval those cases for the purpose of showing that the District of Columbia is not a "state," and, therefore, no part of the United States, and then on the next page asks us to believe that having once been a part "it still remained a part of the United States." Is not this asking too much, and will not some new and more universally operating theory have to be evolved before Loughborough vs. Blake is disposed of?

Mr. Justice White in his opinion undertakes with great diligence, research and ability to establish the doctrine that "the treaty-making power cannot incorporate territory into the United States without the express or implied assent of Congress," and that "Congress is vested with the right to determine when incorporation arises.' His idea is that undesirable territory otherwise would be "without the consent of the American people as expressed by Congress, and without any hope of relief, indissolubly made a part of our common country." In other words once incorporated territory cannot afterwards be alienated or disposed of. His object undoubtedly is to establish a condition during which "when the unfitness of particular territory for incorporation is demonstrated, the occupation will terminate," that is, during which it can be disposed of. He holds that Porto Rico has not been "incorporated,"

and, therefore, the uniformity clause does not apply. Mr. Justice Harlan most pertinently suggests: "What is meant by such incorporation we are not fully informed, nor are we instructed as to the precise mode in which it is to be accomplished." Mr. Justice White's opinion is unfortunately lacking in perspicuity upon both of these points. He repudiates Mr. Justice Brown's method of disposing of Loughborough vs. Blake. He cites that case to support the following proposi

tion:

"But the power just referred to, as well as the qualification of uniformity, restrains Congress from imposing an impost duty on goods coming into the United States from a territory which has been incorporated into and forms a part of the United States."

Assuming that prior to 1820 the District of Columbia, in the sense in which he uses that term, had been "incorporated into" the United States, the case from his view would clearly apply. He fails to inform us when or how it was so "incorporated," but he undoubtedly assumes it to be a fact. He then makes this criticism of Mr. Justice Brown's treatment of that case, saying:

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To question the principle above stated on the assumption that the rulings on this subject of Mr. Chief Justice Marshall in Loughborough vs. Blake were mere dicta seems to me to be entirely inadmissible."

Here four of the majority Justices concede the authority of Loughborough vs. Blake, and it clearly controls the Downes case unless it can be made to appear, not assumed, that the District of Columbia had at that time been "incorporated," and no single fact is stated that it is claimed even tends to show incorporation. In the absence of such showing the decision in the Downes case should be reversed. If the understanding of Congress were entitled to control, which fortunately it is not, it clearly had not been "incorporated," as in 1871 Congress passed an act extending the Constitution to the District, an idle ceremony if it had been "incorporated" into