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averred and shewn by the delinquent party, it would then be liable to be inquired into as a fact by a jury; and thus the legality of the order of the President would depend, not on his own judgment as to the fact, but upon the decision of a Jury upon such proofs of its existence as could be submitted to them.
463. The orders of the President are to be given to the Chief Executive Magistrate of the State, or to any Militia officer he may think proper; and neglect or refusal to obey such orders, is declared to be a public offence, subjecting the offender to trial and punishment by a Court-martial.
· 464. The Militia, when called into the service of the United States, are not considered as being in that service, until they are mustered at the place of rendezvous ; and until that be done, a State has a right, concurrent with the United States, to punish their delinquencies.
465. After the Militia have been actually mustered at the place of rendezvous, into the service of the United States, their character changes from State, to National Militia ; and the authority of the General Government over them becomes exclusive.
466. The Power of levying taxes, and borrowing money, is properly included in the same class with the power of providing for the national defence; as the latter is specified in the Constitution as one of the leading objects of vesting the power of taxation in Congress,
467. The support of the National forces, the expense of raising troops, of building and equipping fleets, and all other expenditures in any wise connected with military and naval operations, are not,
however, the only objects to which the jurisdiction of Congress with respect to revenue, extends.
. 468. The terms of the Constitution by which the power is conferred, embrace a provision for the support of the civil establishment of the United States, for the payment of the National debts, and, in general, for all those objects for which the general welfare -'equires the disbursement of money from the National Treasury.
469. The necessity of vesting this power in the Government of the United States, is obvious; as no Government can be supported without possessing the means within itself of procuring a regular and adequate supply of revenue, so far as the resources at its command will permit.
470. There must of necessity be conferred on every Government, a power of taxation in some shape or other; and in the Government of the United States, it is co-extensive with the purposes of the Constitution.
471. Congress is accordingly invested with power “to lay and collect taxes, duties, imposts, and excises; to pay the debts, and provide for the common defence, and general welfare ;" and it is also invested with a distinct power “to borrow money on the -credit of the United States.” ...
472. The power of taxation is qualified, in its exercise, by a provision requiring "that capitation and other direct taxes, shall be apportioned among the several States according to their respective numbers, as ascertained by the census, and determined by the rule for the apportionment of Representatives in Congress.”.
· 473. This power is further qualified by a provision that “all duties, imposts, and excises, shall be equal throughout the United States;” and it is absolutely restricted by a prohibition upon Congress, to “lay any tax or duties on articles exported from the United States."
474. The Constitution does not define the exclusive subjects of national taxation; although in some instances an interference with many of the sources of State revenue, must have been foreseen, from the exercise of a concurrent power in the General Government.
475. But it was better that a particular State should sustain this inconvenience, than that the general necessities should fail of supply; and it was manifestly intended that Congress should possess full power, subject only to the specified qualifications and restrictions, over every species of taxable property.
476. The term Taxes is general; and is used in the Constitution to confer a plenary authority on Congress, in all cases of taxation to which the powers vested in the Union extend.
477. The most familiar general division of taxes, is into direct and indirect ; and although the Constitution designates only the former species, it necessarily implies the existence of the latter. 478. The general term, then, includes Ist. Direct taxes, which are properly capitation
taxes, and taxes upon Land.
3d. All other taxes of an indirect operation. 479. A direct Tax, operates and takes effect inde
pendently of consumption or expenditure ; whilst indirect Taxes affect expense or consumption ; and the revenue arising from them is dependent thereupon.
480. The practical importance of this distinction, arises from the different modes in which the different species of taxes are levied ; direct taxes being required to be apportioned amongst the several States, according to the respective numbers of their inhabitants; whilst indirect taxes, not admitting of this apportionment, are directed to be “uniform throughout the United States," on the articles subjected to taxation.
481. If Congress thinks proper to raise a sum of money by direct taxation, the quota of each State must be fixed according to the census, and in conformity with the rule of apportionment prescribed by the Constitution; but if indirect taxation be resorted to, the same duty must be imposed throughout the Union on the article liable to it, whether its quantity or consumption be greater or less in the respective States.
482: The Constitution considers no taxes as direct taxes, but such as may be laid in proportion to the census, and the rule of apportionment is held not to apply to a tax on carriages; nor could such a tax be laid by that rule, without great inequality and injustice..
483. A tax on carriages was accordingly consider. ed as an indirect tax on expense or consumption, and as included within the power to lay duties; and the better opinion seems to be, that the direct taxes contemplated by the Constitution are only two, viz; a capitation or poll-tax, and a tax on land.
484. Although duties must be uniform, and direct
taxes apportioned according to numbers, yet the provision of the Constitution, with respect to the latter, does not limit the power of Congress to the imposition of taxes upon the inhabitants of the several States only; but that power extends equally to all places over which the National Government has jurisdiction, and applies to the District of Columbia, and to the organized Territories, although their inhabitants are not represented in Congress.
485. The power of Congress to exercise exclusive jurisdiction over the District of Columbia, and to govern the Territories of the United States, includes the power of taxing their inhabitants; but Congress is not bound absolutely to exercise that power; and may, in their discretion, extend a tax, or not, to all the Territories, as well as to the States.
486. 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 a State from its due share of the burthen; and although it is not under the same necessity of extending the tax to the District of Columbia, or to the National Territories, yet, if the tax be actually extended to either of them, the same constitutional rule of apportionment, must be applied in its imposition.
487. The construction which allows Congress, in the exercise of its discretion, to omit extending a tax to those portions of the Union which are not directly represented in the National Legislature, is not only the most convenient interpretation, as the expense of collecting a direct tax in the more remote Territories might exceed its amount, but it enables Congress to avoid the imputation of violating, even in appearance, the fundamental principle which regards tạxation and representation as inseparable.