under its organic law," or where he speaks of the "sphere of application of the Constitution" as being subject to extension or expansion at the will of the Government. What is meant by holding Porto Rico as a colony or as a dependency, except merely this, that it is to be governed by the same government as ourselves without regard to those restrictions which stand between it and us? If we find that Porto Rico must be governed under those same restrictions, we shall also have found that it is untrue that Porto Rico has not been "incorporated as an integral part under our organic law." Such expressions as "incorporation under the Constitution," "extension of our organic law," "extension of our institutions," "application of the Constitution er proprio vigore," and the like, are mere metaphors, and, like most metaphors, they are not only infelicitous, but misleading. If the Constitution is viewed as some sort of a substance possessing dimensions and the other properties of matter, it is not unnatural to infer that some outside force is needed to enlarge or extend its volume. But if, without using metaphors, we regard it as what it actually is an instrument by which the people of the United States have delegated certain powers to their agents thereby appointedit is self-evident that those agents when-as the instrument empowers them they enlarge the territorial limits of their operation, are none the less restricted to the powers which it confers upon them. The notion that a Government which lives and moves and has its being only in the Constitution, when by virtue of an implied power conferred upon it by that Constitution it adds to the domain of the nation, projects out of itself a sort of astral body free from the infirmities to which itself is heir, can hardly be refuted in any other way. It would be well for those who entertain such pretensions to assert out and out that Porto Rico or the Philippines belong, not to the United States, but to the President, or to the Congress, or, as the learned board of appraisers actually did say, to the Government. (R., p. 18.) If they were acquired by the United States, belong to the United States, it is by virtue of the Constitution only. If the power to control and govern them is in any branch of the Government of the United States, it is derived from the Constitution. It certainly is so derived if it depends upon the power of Congress to "make all needful rules and regulations respecting the territory belonging to the United States." To this extent, at least, then, the Constitution does "extend to Porto Rico." It is "incorporated under our organic law" in the sense that it is only from "our organic law" that the power to acquire it is derived, and only in our organic law that the power to govern it and its inhabitants can be found. There are many provisions in the Constitution which are clearly universal in their application; no one, we presume, would question the power of the President to veto an act for the gov ernment of Porto Rico or the Philippines; no one, probably, would question that all executive and judicial officers appointed to exercise authority there must "be bound by oath or affirmation to support this Constitution." In these respects at least, then, it is not possible to claim that it is in the discretion of the Government whether those countries shall be "incorporated under our organic law." On the other hand, the Constitution contains many provisions which in their nature or by their very terms refer only to governmental action with regard to the people in the States. And there are others such as that which empowers the Congress to make all needful rules and regulations concerning the territory, etc., of the United States, and that empowering it to exercise exclusive legislation in all cases whatsoever in the District of Columbia, which evidently apply only outside of the States. If any question be open for discussion, then, it is not whether the Constitution "applies," en bloc, to territory acquired by the nation, but whether, in acquiring or in governing national territory, as in the exercise of any other power, express or implied, this or that particular provision of the Constitution relates to the particular exercise of power which may be in question. 3. The express prohibitions in the Constitution. In enlarging upon these general principles, and in particularly applying them to the case at bar, it will be well for us to have the benefit of the light shed upon their application to the power to acquire and govern new territory in the adjudged cases in this court. We propose, therefore, to examine at once the authorities upon the subject. And we find those authorities to be most numerous, and most directly in point, which relate to the scope and effect of those express prohibitory clauses of the Constitution to which we have alluded. Such are the provisions as to the suspension of the writ of habeas corpus, as to bills of attainder, and ex post facto laws, and others in Art. Í, § 9, the provision for trial by jury in § 2, and that respecting conviction of treason in § 3 of Art. II, the bill of rights embodied in the first ten amendments, and the thirteenth and fifteenth, and, in part, the fourteenth amendments. That all these stand upon the same footing, so far as the present matter is concerned, will not, we presume, be disputed. There can be no question of their restrictive effect upon other powers than that of acquiring or governing new territory. "Like the other powers granted to Congress by the Constitution, the power to regulate commerce is subject to all the limitations imposed by such instrument, and among them is that of the fifth amendment, we have heretofore quoted. Congress has supreme control over the regulation of commerce, but if, in exercising that supreme control, it deems it necessary to take private property, then it must proceed subject to the limitations imposed by the fifth amendment, and can take only on payment of just compensation. The power to regulate commerce is not given in any broader terms than that to establish post-offices and post roads; but if Congress wishes to take private property upon which to build a post-office, it must either agree upon a price with the owner, or in condemnation pay just compensation therefor." (Brewer, J., in Monongahela Navigation Co. vs. U. S., 148 U. S., 312, 336.) 4. The prohibitory clauses apply in the government of the territory of the United States. The principle embodied in the decision just cited applies as well to the implied power to acquired territory and to the power to govern it-whether that be considered as a necessary implication from the power to acquire, or as being an express power conferred by Art. IV, §3. Subd. 2-as it does to the express power to regulate commerce. But so far as the power to govern is concerned, its application has been definitely settled, and more particularly by the series of recent decisions of this court, which we will first examine: Reynolds v. United States, 98 U. S., 145; Reynolds v. United States (1878) involved the constitutionality of an act of Congress providing for punishment by fine and imprisonment of a person found guilty of bigamy in a Territory or other place over which the United States had exclusive jurisdiction. One of the defences interposed by the plaintiff in error, who was indicted and tried for this offence in Utah before its admission to statehood, and who was a Mormon, was that the practice of polygamy was a part of his religion and a religious duty on his part, and that the act in question was therefore a violation of the provision of the Constitution (Amendment I) that "Congress shall pass no law respecting an establishment of religion, or prohibiting the free exercise thereof." Waite, C. J., in delivering the opinion of the court, said (p. 162): "Congress can not pass a law for the government of the Territories which shall prohibit the free exercise of religion. The first amendment to the Constitution expressly forbids such legislation. Religious freedom is guaranteed everywhere throughout the United States so far as Congressional interference is concerned. The question to be determined is whether the law now under consideration comes within this prohibition." And in an earlier part of the opinion, dealing with the prisoner's right of challenge, the learned Chief Justice also said (p. 154): "By the Constitution of the United States (Amend. VI), the accused was entitled to a trial by an impartial jury." In Callan v. Wilson (1878) the appellant had been convicted of conspiracy upon a trial in the police court of the District of Columbia pursuant to act of Congress (Rev. St., Dist. Col., § 1064). He claimed that "the Constitution of the United States secured to him the right to be tried by a jury, and that right having been denied, the police court was without jurisdiction to impose a fine upon him or to order him to be imprisoned until such fine was paid." His claim was based upon the provision in the third article of the Constitution, that "the trial of all crimes, except in cases of impeachment, shall be by jury," etc. Harlan, J., in delivering the opinion of the court sustaining the appellant's claim and reversing the judgment below, said (p. 549): "As the guarantee of a trial by jury, in the third article, implied a trial in that mode and according to the settled rules of the common law, the enumeration, in the sixth amendment, of the rights of the accused in criminal prosecutions is to be taken as a declara ation of what those rules were, and is to be referred to the anxiety of the people of the States to have in the supreme law of the land, and so far as the agencies of the General Government were concerned, a full and distinct recognition of those rules as involving the fundamental rights of life, liberty, and property. This recognition was demanded and secured for the benefit of all the people of the United States, as well as those permanently or temporarily residing in the District of Columbia, as those residing or being in the several States. There is nothing in the history of the Constitution or of the original amendments to justify the assertion that the people of this District may be lawfully deprived of the benefit of any of the constitutional guarantees of life, liberty, and property-especially of the privilege of trial by jury in criminal In Reynolds v. United States (98 U. S., 145, 154) it was taken for granted that the sixth amendment of the Constitution secured to the people of the Territories the right of trial by jury in criminal prosecutions, and it had been previously held in Webster v. Reid (11 How., 437, 460) that the seventh amendment secured to them a like right in civil actions at common law. We can not think that the people of this District have in that regard less rights than those accorded to the people of the Territories of the United States." cases. * * * In Springville v. Thomas (1896) the question again arose in Utah; this time upon the validity of an act of the Territorial legislature, providing that a verdict in a civil case should be valid upon the concurrence of nine jurors. The same question also arose at the same term in American Publishing Company v. Fisher (166 U. S., 464), but there was this material difference between the two cases: In the American Publishing Company's case, which was decided earlier than the other, the amount involved was over five thousand dollars, and the court had general appellate jurisdiction. (166 U. S., 466.) In Spring. ville v. Thomas the amount involved was less than five thousand dollars, and the court only had jurisdiction in so far as the validity of any statute of or authority exercised by the United States was drawn in question in the court below. (23 St. at L., 443, § 2.) In the Publishing Company's case the court did not find it necessary to decide the constitutional question, because it held that the Territorial act conflicted with the act of Congress establishing a Territorial Government for Utah and with a later act having more special reference to jury trials (467). Brewer, J., expressed some doubt upon the constitutional question, and the court merely held that "either the seventh amendment to the Constitution, or these acts of Congress, or all together, secured the right to a trial by jury," of which right "unanimity was one of the peculiar and essential features" (p. 468). * * * In the Springville case, however, the "statute of the United States," the "validity" of which was "drawn in question," was not the act of the Territorial legislature, but the act of Congress establishing the Territory, which had been construed below as having "vested in the Territorial legislature such unlimited legislative power as enabled it to provide that unanimity was not necessary to a valid verdict. The court had no jurisdiction to pass upon the construction of the act of Congress, but only upon its validity. It was therefore directly * * * confronted with the question whether that "organic act," as construed by the court below, was constitutional. Fuller, C. J., who delivered the opinion of the court (in which Brewer, J., appears to have concurred, as did the rest of the bench), said (p. 708): "In the view which the supreme court [of Utah] took of the act it was obliged to subject it to the test of the Constitution, and accordingly in deciding that the seventh amendment did not require unanimity of action the court held in effect that the act of Congress was constitutional although it empowered the Territorial legislature to provide for verdicts by less than the whole number of jurors. The question involved was not matter of construction of the Territorial act, but the court discussed its validity, and this depended on the validity of the act of Congress giving it the scope which the court attributed to it. "In this there was error. In our opinion the seventh amendment secured unanimity in finding a verdict as an essential feature of trial by jury in common-law cases, and the act of Congress could not impart the power to change the constitutional rule, and could not be treated as attempting to do so." In Bauman v. Ross (1896) it was assumed by the court that the fifth amendment was in force in the District of Columbia. In Thompson v. Utah (1897) the question was as to the validity of a statute of the State of Utah, providing for the trial of criminal cases other than capital, by a jury of eight, as applied to a trial for a crime committed before the admission of Utah as a State. The court held that it was not "competent for the State of Utah, upon its admission into the Union, to do in respect of Thompson's crime what the United States would not have done while Utah was a Territory" (p. 350). This left to be decided the question whether an act of Congress providing for a trial by a jury of eight persons in the Territory of Utah would have conflicted with the provision of Art. III, § 2, of the Constitution, quoted above; and the court, per Harlan, J., declared that it would (p. 347): "That the provisions of the Constitution relating to the right of trial by jury in suits at common law applied to the Territories of the United States is no longer an open question' (citing Webster v. Reid Pub'g Co. v. Fisher, Springville v. Thomas, supra). In the last-named case it was claimed that the Territorial legislature of Utah was empowered by the organic act of the Territory of September 9, 1850 (9 St., 453, c. 51, § 6), to provide that unanimity of action on the part of jurors in civil cases was not necessary to a valid verdict. This court said: 'In our opinion the seventh amendment secured unanimity in finding a verdict as an essential feature of trial by jury in common-law cases, and the act of Congress could not impart the power to change the constitutional rule, and could not be treated as attempting to do so.' "It is equally beyond question that the provisions of the National Constitution relating to trial by jury for crimes and to criminal prosecutions applied to the Territories of the United States" (citing Reynolds v. U. S. and Callan v. Wilson, supra.) · |