territory by treaty, the Government may, in and by the treaty, determine what relations shall subsist between it and the inhabitants; what powers it shall have over them; what rights, if any, they shall have as against it.

If this assertion be sound, it must be because the Government has the broad, substantive power to "determine the status" of new territory, whether acquired by treaty, by conquest, or by discovery; it cannot depend upon the grant of the treaty-making power.

The power to make treaties, if it has no other limitations, is surely limited by the nature of the grant. Nothing can be done under it which is not properly the subject of a treaty.

How far, then, is the determination of the relations of the "new master" to the ceded territory legitimately the subject of a treaty? Obviously no further than as it may, in the broadest contemplation. be a matter which concerns the ceding power. And this will not carry it a single step beyond the guaranteeing of rights to the inhabitants as against that new master. Beyond this, the question of their mutual relations is a matter of no concern except to it and to them; it is a matter of domestic, not of international, policy.

It is therefore a logical necessity that the Government should assert that whenever and however it acquires territory, it is empowered to determine its own relation to that territory and to its inhabitants; in other words, to determine what its own nature and powers shall be.

It also follows from the fact that the determination is not properly within the scope of the treaty-making power that it must be made by the Congress, not by the President and Senate alone.

And if the power to make this determination is established, there goes with it the power to alter that determination from time to time. It is not a power to make a constitution, but a power of irresponsible government according to a mutable discretion.

And this power must be exercised in the Capitol at Washington, by the Congress of the United States, sitting in a dual capacity, and exercising in confused conjunction the repugnant functions of a maker of imperial ukases and of constitutional laws.

Whether the Government's position is sound or not is discussed in our main brief. We are now solicitous only to emphasize the fact that the claim is logically and necessarily one of UNLIMITED POWER

FOR ALL TIME.

II.

The exigencies of the subject compelled the learned Attorney-General to make the further assertion (Brief, p. 5) that the obligation of uniformity in duties, imposts, and excises extended no further than "the territory comprised within the several States of the Union, and was intended only for their benefit and protection, and not for the benefit and protection of outside territory belonging to the nation." But we submit that he forgets that the protection and benefit which he says was intended to be conferred upon the States of the Union is seriously curtailed by this assertion.

If the uniformity provision does not forbid the laying of a duty, impost, or excise for the general purposes of the Government, which shall fall only upon the territory outside of the States, neither does it forbid the laying of such a tax which shall fall only on the States and not on the Territories. In that case the "benefit and protection" of

uniformity would be denied, not to the inhabitants of the Territories, but to those of the States.

It is not the right to be included in a general tax, but the security that others shall not be excluded from it, which is the constitutional immunity-whatever its extent-secured by the uniformity clause. If Louisiana were now governed under the Jeffersonian system as understood by the learned Attorney-General, her exclusion from her share of the burden of an impost or excise imposed elsewhere would leave no greater or less a part of that burden to be borne in the other States than if, being one of their number, she were so excluded.

As we pointed out in our main brief, such unequal taxation might, in the early days of the Republic, have served the purposes of a hostile combination of States against States; nor, indeed, can it be said with certainty that at any day a power so opposed to our principles of equality might not, if it existed, be used for such a purpose.

III.

The question having been raised how far this court, in reaching its conclusions upon the matters now submitted to it for decision, can and should consider the consequences which may ensue, the undersigned submit, with great deference, their views upon the subject:

They believe that the particular consequences of the decision, one way or the other, of a particular case are not to be considered by the court, but that general consequences, presumably considered by the framers of a written law, must and should be considered in determining its meaning.

They believe, therefore, that whenever the language of the Constitution, being before this court for construction, is not so plain and unambiguous as to determine the question at issue, this court is not merely empowered, but is bound, not only to resort for light to "the general tenor and object of the instrument," but to take account of those evident and general results of the interpretation sought to be put upon a particular clause which may reasonably be supposed to have been present in the minds of those who framed it; and that in so doing it must be remembered that "the instrument was not intended to provide merely for the exigencies of a few years, but was to endure through a long lapse of ages, the events of which were locked up in the inscrutable purposes of Providence" (per Story, J., 1 Wh., 304). They emphatically believe that the court is bound to consider, as a determining factor against a suggested construction of the Constitution, a consequence which renders it "mischievous, or repugnant to the general spirit of the instrument," and they have not hesitated, in the main brief, to adopt a line of argument based upon such considerations, in refutation of the construction of the Constitution which the Government seeks to uphold.

If, then, any argument can be found in favor of the claim of the Government to absolute power outside of the States of the Union, which is not too restricted in its application to take account of the territory held when the Constitution was adopted, and of nearer regions whose annexation may easily be supposed to have been contemplated by them, as well as of the "peopled countries of Asia, Africa, or Oceania" lying "across the then almost untravelled expanse of ocean" (Brief for the Gov't, p. 146), and if the court finds in that claim nothing contrary to

the letter or to the evident spirit and purpose of the Constitution, we cheerfully admit that it may, and should, give weight to such argument, and avail of such assistance as it may give towards ascertaining the general rule of the Constitution upon the subject.

But we claim that the particular inconveniences which might arise from governing some particular territory according to the rule of the Constitution suggest merely political arguments proper to have been urged against its annexation, and that neither they, nor the special benefits, material or other, which would accrue, are properly a part of an argument addressed to this court, or can assist or influence it in construing that instrument which contains the "definition and limitation of the power" of the Government.

We deny "the doctrine that because the Constitution has been found, in the march of time, sufficiently comprehensive to be applicable to conditions not within the minds of its framers, and not arising in their time, it may, therefore, be amended by judicial decision without action by the designated organs in the mode by which alone amendments can be made.

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McPherson v. Blacker, 146 U. S., 1, 36.

And, finally, we repeat the words of a great judge, solemn and convincing enough in themselves, but bearing a trebled weight of solemnity and conviction because of the occasion on which they were uttered (Dred Scott v. Sandford, 19 How., 620):

"Political reasons have not the requisite certainty to afford rules of juridical interpretation. They are different in different men. They are different in the same men at different times. And when a strict interpretation of the Constitution, according to the fixed rules which govern the interpretation of laws, is abandoned, and the theoretical opinions of individuals are allowed to control its meaning, we have no longer a Constitution; we are under the government of individual men, who, for the time being, have power to declare what the Constitution is, according to their own views of what it ought to mean. When such a method of interpretation of the Constitution obtains, in place of a republican government with limited and defined powers we have a government which is merely an exponent of the will of Congress; of what, in my opinion, would not be preferable, an exponent of the individual political opinions of the members of this court."

IV.

In view of the great insistence of the learned Attorney-General upon opinions expressed in Congress during the Louisiana and the WebsterCalhoun debates, and on the construction placed upon the Constitution by the Government in former cases of annexation, and in order that the historical incidents to which he refers may be accurately understood, we refer, in an appendix to this brief, to a number of the incidents with which he deals so fully.

So far as governmental action is concerned, there is but one instance in which it can be said that our theory of the Constitution has been departed from; the depriving for a short period the inhabitants of Louisiana Territory, not one of whom, so far as is known, ever sought to enforce his rights, of the right of trial by jury in civil cases involv

ing less than one hundred dollars. This is certainly far from being "a practical construction of the Constitution, nearly contemporaneous with its adoption and continued through a long series of years (Curtis, J., 19 How., 616; quoted in the Government's brief at p. 173), and could hardly "influence," much less "determine," even in "a doubtful case," the judicial mind." But this claim, we submit, is not of such a nature that the action of the Government for any length of time could confirm it. It belongs to the class of which Chief Justice Marshall said, "It will not be denied that a bold and daring usurpation might be resisted, after an acquiescence still longer and more complete than this;" and not to that of which he spoke when he "conceived that a doubtful question, one on which human reason may pause, and the human judgment be suspended, in the decision of which the great principles of liberty are not concerned, but the respective powers of those who are equally the representatives of the people are to be adjusted, if not put at rest by the practice of the Government, ought to receive a considerable impression from that practice." (4 Wh., 401.).

EDWARD C. PERKINS,
ALBERT COMSTOCK,
EVERIT BROWN,

Of Counsel with Appellant.

APPENDIX I.

JEFFERSON'S DOUBTS AS TO THE CONSTITUTIONALITY OF THE LOUISIANA PURCHASE AND TREATY.

(See the brief for the Government, p. 31.)

It is claimed that Thomas Jefferson is the father of the doctrine of the unlimited and extraconstitutional power of the Government over territory acquired outside of the original boundaries of the United States; that "Jefferson's doubt was not with reference to the power of the United States to acquire foreign territory, but rather as to the right to annex it to and make it a part of the United States."

If Jefferson had not doubted the power to take Louisiana, he certainly could not have doubted the power to hold and to govern it and its inhabitants. If he had believed in the absolute right to hold and to govern it, he could hardly have disbelieved in the right--for which the learned Attorney-General elsewhere in his brief stoutly contendsto provide by treaty, as a consideration for a cession, for the observance of such restrictions in the government of the people whose allegiance was to be transferred as might secure their personal liberty and rights. The fact is, that the question of the extent of the power of governing new territory was a matter not so much as considered among the constitutional questions which arose upon the purchase. The following passages show, as we believe, (1) Jefferson's conception of the importance of the purchase, overriding all constitutional objections, which he was willing to leave to be cured by an amendment, and (2) that what he doubted was the power to acquire the territory, and the constitutionality of the promise in the treaty for the admission of

the territory as a State, or States, or, as the treaty expressed it, for "incorporating the inhabitants into the Union of the United States." Jefferson to Monroe, January 13th, 1803:

"On the event of this mission depends the future destinies of this Republic. If we can not by a purchase of the country insure to ourselves a course of perpetual peace and friendship with all nations, then as war can not be distant, it behooves us immediately to be preparing for that course.”

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VIII. Ford's Writings of Thomas Jefferson, 191.

Jefferson to Dupont de Nemours, Feb. 1st, 1803:

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"He (Monroe) goes, therefore, joined with Chancellor Livingston, to aid in the issue of a crisis, the most important the United States have ever met since their independence, and which is to decide their future character and career. Our circumstances are so imperious as to admit of no delay as to our course; and the use of the Mississippi so indispensable, that we can not hesitate one moment to hazard our existence for its maintenance" (id., 205).

Jefferson to Livingston, Feb. 3d, 1803:

"We must know at once whether we can acquire N. Orleans or not. We are satisfied nothing else will secure us against a war at no distant period" (id. 209).

Jefferson to Gallatin, Jan., 1803:

"You are right, in my opinion, as to Mr. L.'s proposition: There is no constitutional difficulty as to the acquisition of territory, and whether, when acquired, it may be taken into the Union by the Constitution as it now stands, will become a question of expediency. I think it will be safer not to permit the enlargement of the Union but by amendment of the Constitution." (1 Wr. of Gallatin, 115.)

Jefferson to Breckenridge, Aug. 12th, 1803.

"The legislature, in casting behind them metaphysical subtleties and risking themselves like faithful servants, must ratify [the treaty] and pay for it, and throw themselves on their country for doing for them unauthorized what we know they would have done for themselves had they been in a situation to do it. It is the case of a guardian investing the money of his ward in purchasing an important adjacent territory, and saying to him, when of age: I did this for your good; I pretend to no right to bind you; you may disavow me, and I must get out of the scrape as I can; I thought it my duty to risk myself for you. But we shall not be disavowed by the nation, and their act of indemnity will confirm and not weaken the Constitution, by more strongly marking out its lines." (VIII. Ford's Wr. of Jefferson.)

Jefferson appears to have written to the same effect to Thomas Paine on the same day. Eight days later he wrote again to these two correspondents, not, as is suggested in the brief of the Government, to modify in any way what he had said, but to caution them against the danger, which had just become apparent to him, of an open discussion of the question.