when the Territory was added to the internal-revenue district of Oregon by Executive order. Now, has Congress ever made any distinction between the Territories and the States as to customs laws? I have not been able to examine fully all the laws on this subject, but accidentally, taking up the first volume of statutes only yesterday, I lighted on this: The act of 1799 (1 Statutes, 627) provides for the extension of the customs laws to the Northwest Territory. There was a tariff law on the statute book. The act of 1799 extended that to the Northwest Territory. Now, that tariff law provided certain rates of duty on peltries, but section 105 of the act I have now spoken of, extending it to the Territory, contains this clause: "No duty shall be levied or collected on the importation of peltries brought into the Territories of the United States. Not "territory." but territories," thus making a plain distinction between a duty on products brought from a foreign country into one of the States, as, for instance, from Montreal into the State of New York, and those brought into the Territory northwest of Ohio. Mr. Justice BROWN. Suppose they were afterwards brought into the States from the Territories The ATTORNEY-GENERAL. There was no provision whatever for their being taxed, and free access was had at that time and allowed between the people of the Northwest Territory and the States to come and go freely with their goods. It was only at the frontier that there was any interference. It is a plain exemption-"No duty shall be levied or collected on the importation of peltries brought into the Territory." Now, a duty was levied on all other dutiable merchandise and products when brought into the Territory, but then it was considered as brought within the United States. Another instance. The Alaska act of July 27, 1868, lays a revenue tax or duty-that is the language of $2 on each fur-seal skin taken or shipped from the islands of St. George and St. Paul, in Alaska. It lays no internal-revenue duty or tax on any other seal skins from any other part of the dominions of the United States; thus showing that in two instances at least Congress has made a difference, one being an instance of customs, and the other an instance of internal revenue. It was admitted on the argument that one exception as to the alleged requirement of uniformity of taxation, etc., prevails as to the uncivilized Indian tribes on this continent. Just what warrant there is for treating uncivilized tribes of red men differently from uncivilized tribes of brown men, or black men, does not appear, and there seems to be no real difference that can be suggested. It is true that our Constitution authorizes the President and Senate to make treaties, to regulate commerce between the various States, with foreign nations, and with the Indian tribes; but such regulation of commerce with Indian tribes probably was intended to cover the Indian tribes-originally and primarily the Indian tribes-who were within the confines of the States. And so here is a consideration, a circumstance, in the present condition of this country, which requires that we should endeavor to stand at a point where we can view the situation as it is to-day, rather than as it was a century ago-take a different view of it, from what perhaps Chief Justice Marshall took when he spoke about our "Great American Empire," thinking then of the States and the Northwest Territory, peopled by the sons of the citizens of the States, endowed with a spe cific compact, through the ordinance of 1787, that they should at no distant day be admitted to the rights of statehood. We must look at the situation as comprehending a possibility-I do not say a probability, but a possibility-that the question might be as to the powers of this Government in the acquisition of Egypt and the Soudan, or a section of Central Africa, or a spot in the Antarctic Circle, or a section of the Chinese Empire. And in considering who shall acquire the rights of citizens just because they inhabit territory belonging to the United States, it is necessary to consider the nature and character of the different classes of people which, under the ample powers of the Government, may be added to our domain. The clause of the Constitution which we have been discussing, the clause which confers upon Congress the power to govern territory, declares that it may make all needful rules and regulations respecting the territory of the United States. How should that be construed? The question was suggested yesterday from the bench. Let me read a passage from the same opinion, that of the Chief Justice in Me Culloch v. Maryland. "The subject that is, the subject under consideration-is the execution of those great powers on which the welfare of a nation essentially depends. It must have been the intention of those who gave these powers to insure, as far as human prudence could insure, their beneficial execution. This could not be done by confiding the choice of means to such narrow limits as not to leave it to the power of Congress to adopt any which might be appropriate and which were conducive to the end. This provision is made in a Constitution intended to endure for ages to come, and, consequently, to be adapted to the various crises of human affairs. To have prescribed the means by which Government should, in all future time, execute its powers, would have been to change, entirely, the character of the instrument, and to give it the properties of a legal code. It would have been an unwise attempt to provide by immutable rules for exigencies which, if foreseen at all, must have been seen dimly, and which can be best provided for as they occur. To have declared that the best means shall not be used, but those alone without which the power given would be nugatory, would have been to deprive the legislature of the capacity to avail itself of experience, to exercise its reason, and to accommodate its legislation to circumstances." Every word of that applies to this subject, as connected with the new conditions that confront the governing power of this country. The contention of the opponents of the Government in these cases, if sustained, will not safeguard a single personal right. It will only hamper the Government in the choice of its means, in the exercise of its discretion, as to the wisest method for itself and its people of governing the territory that belongs to it. It will secure nothing to the States, nothing to the inhabitants of the islands, except the necessity of sharing the burdens of Federal taxation, even if such a course shall plainly be to their prejudice and ruin. I submit that neither principle, nor precedent, nor policy require that this court shali make a decision which, contrary to the course of the Government for almost a century, shall reverse the action of Administration after Administration, and for all future time hamper the purposes, the powers, the progress, and the prosperity of the Great American Republic. TRANSCRIPT OF RECORD. SUPREME COURT OF THE UNITED STATES. OCTOBER TERM, 1900. No. 419. FOURTEEN DIAMOND RINGS, EMIL J. PEPKE, vs. THE UNITED STATES. IN ERROR TO THE DISTRICT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF ILLINOIS. FILED SEPTEMBER 17, 1900. |