Republic," which is composed of States and Territories-and, in the broadest sense, if he does not mean by this, territory unorganized, then over that too. The Territories are not integral parts but possessions of this "grand corporation." The governing unit, composed of the States, possesses and exercises dominion over the Territories, subject only to the applicable restrictions and limitations of the Constitution. All the provisions of the Constitution do not and can not have uniform operation both within the States and Territories whose political status and relation to the governing body are so widely different. It is true that every part of the national domain is within the jurisdiction of the Constitution, but it does not follow that every part is subject to all of its provisions. Each part is subject to some one or more of them, but all parts are not subject to all of them.

The Territories, not being parts, but possessions, of the governing body, are not within the scope or purpose of those limitations and restrictions which were designed to preserve and protect the rights of the States composing the Union. In legislating for the Territories Congress is not limited to jealously guarded national powers, but exercises the combined powers of the General and of a State Government. Mr. Justice HARLAN. Where is the Dixon Case you referred to? The SOLICITOR-GENERAL. In 1 Brockenbrough, 177. It was a case decided on the circuit.

The safeguard when Congress thus acts outside of those limitations to which I am going now to refer, and which I regard as applicable, is what Chief Justice Marshall refers to in Gibbons v. Ogden (9 Wheaton, 1), where, meeting the objection that, according to the position taken by counsel for the Government, despotic power was given by the clause authorizing Congress to regulate commerce among the several States, he said (p. 197):

The wisdom and the discretion of Congress, their identity with the people, and the influence which their constituents possess at elections are, in this, as in many other instances as that, for example, of declaring war-the sole restraints on which they have relied to secure them from its abuse. They are the restraints on which the people must often rely solely in all representative governments.

THE APPLICABLE LIMITATIONS STATED.

But there are limitations which apply to Congress in exercising the territorial grant. Obviously those limitations which are laid upon the exercise by Congress of a special power, irrespective of the place where exercised, do apply, such as those forbidding Congress to pass any bill of attainder, or any ex post facto law, or confer any title of nobility. These, as Madison said in No. 43 of the Federalist, are contrary to the first principles of the social compact. The prohibition of slavery operates by express provision everywhere. But these are not the only limitations. It is always to be borne in mind that this is a Government framed by the people, among other things, to establish jus tice and to secure the blessings of liberty. A Government thus dedicated to liberty and justice is based on fundamental principles, and at all times must show respect for fundamental rights. This, I take it, is what Mr. Justice Bradley meant when he said in the Mormon Church Case (136 U. S., 44):

Doubtless Congress, in legislating for the Territories, would be subject to those fundamental limitations in favor of personal rights

which are formulated in the Constitution and its amendments; but these limitations would exist rather by inference and the general spirit of the Constitution from which Congress derives all its powers, than by any express and direct application of its provisions.

And obviously it was to this that Mr. Justice Harlan, speaking for the court, referred in McAllister v. United States (141 U. S., 188) when he said:

How far the exercise of that power [the power to govern the Territories] is restrained by the essential principles upon which our system of government rests, and which are embodied in the Constitution, we need not stop to inquire.

Mr. Justice BROWN. Can Congress take private property for public use without compensation in the Territories?

The SOLICITOR-GENERAL. Well, I suppose the court will have to define the fundamental limitations. I do not think I can. The court has not categorically stated them as yet. The court has contented itself with saying there are fundamental principles embodied in the Constitution.

Mr. Justice BROWN. You prefer the court should define the limitations and do not care to state them yourself? [Laughter.]

The SOLICITOR-GENERAL. I prefer to have the court define the limitations rather than try to do so myself. I think it would be presumptuous in me to act as pioneer in this matter. I am content to follow the court.

THE ANN ARBOR ADDRESS.

In a pamphlet entitled "An Argument in Reply," filed by Mr. Aldrich, in the Fourteen Diamond Rings case, which purports to be a report of his oral argument, there is inserted matter which we can not recollect was included in the oral argument. After asserting that, according to the Attorney-General, Congress and the President are invested with irresponsible and arbitrary power, which has no limitations but the varying and ever-changing grace of the Congress of the United States, Mr. Aldrich turns with satisfaction to a distinguished living statesman and lawyer and quotes as follows from an address recently delivered at Ann Arbor:

"Under this absolutist construction of the powers of government in territories composed like Porto Rico and the Philippines, a law may be declared by the Supreme Court to be operative, although every section of it should supervene every bill of rights in the Constitution." And then an outline is given of what might be done by a valid law which the Supreme Court would uphold, if the position of the Government is correct, and among other sections are these:

Section 2 declares attainder against all Porto Ricans who have displayed the Spanish flag.

Section 3 declares the promotion of the native mayors of Ponce and San Juan with the titles of Lord Dukes of Porto Rico.

Section 4 provides that any Porto Rican who shall speak disrespectfully of Congress shall be guilty of treason. On conviction the offender shall have his tongue cut out.

Mr. Justice BREWER. Does anybody question the wisdom of that last provision? [Laughter.]

The SOLICITOR-GENERAL. I take it no one would question the uniformity of its operation if it were practically applied

I might go on and read the section providing for an established church in Porto Rico. In the address the particular church to be established was not mentioned. In the revised version, printed in the North American Review, the church was named; it was his own; and since I am connected with the same church, can I be blamed for not questioning, even inferentially, the wisdom of the suggestion?

THE SUGGESTED ENACTMENTS IMPOSSIBLE.

What I desire to say-speaking seriously-is, that the Government has never asserted, and does not believe, that Congress has the power of a despot in Porto Rico. The fundamental limitations in favor of personal rights which are formulated in the Constitution and its amendments, referred to by Mr. Justice Bradley, stand in the way of everything suggested which shocks the moral sense. Congress could not pass any ex post facto law, or declare an attainder, or grant any title of nobility, or provide for the trial or punishment of treason in any other way than that marked out in the Constitution, all these things being prohibited by direct and applicable provisions. If the first ten amendments do not limit by direct application Congress in legislating for our new possessions-I put this as a possible case-neither do they operate within the States which compose the Union. As this court, speaking by Mr. Justice Waite, said in United States v. Cruikshank (92 U. S., 552):

The first amendment to the Constitution prohibits Congress from abridging "the right of the people to assemble and to petition the Government for a redress of grievances." This, like the other amendments proposed and adopted at the same time, was not intended to limit the powers of the State governments in respect to their own citizens, but to operate upon the National Government alone.

"Protection to life, liberty, and property rests primarily with the States," as Chief Justice Fuller said in In re Kemmler (136 U. S., 448). "The Constitution makes no provision for protecting the citizens of the different States in their religious liberties; this is left to the State constitutions and laws," said Mr. Justice Catron, speaking for the court in Permoli v. First Municipality (3 Howard, 609).

POWER OF THE STATES.

The Constitution forbids the States to pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts, or to grant any title of nobility, and the fourteenth amendment provides that "no State shall deprive any person of life, liberty, or property without due process of law, nor deny to any person within its juris diction the equal protection of the laws;" but outside the range of these limitations the people of the State, through its constitution and laws, are supreme. They can define treason against the State as they see fit; they can limit the freedom of speech and of the press; they can restrict the bearing of arms; they can provide for the quartering of troops.

Mr. Justice HARLAN. Could a State have an established religion? The SOLICITOR-GENERAL. I have already read what the court said in regard to that in connection with the first amendment. That question came before this court in the Permoli case, and the court said that the Constitution makes no provision for protecting the citizens of the respective States in their religious liberties.

Mr. Justice HARLAN. What does the word "liberty" in the fourteenth amendment mean?

The SOLICITOR-GENERAL. That is a broad question which the court has not yet fully answered. I stand by the decision of the court upon a specific point, and if that is overruled by a general expression, I must yield.

Mr. Justice HARLAN. What would you say as to an act of Congress which absolutely forbade all trade between Porto Rico and the States? If Congress could not do that, what is the provision of the Federal Constitution that would stand in the way?

The SOLICITOR-GENERAL. I think Congress could, if it saw fit, prohibit all trade.

Mr. Justice HARLAN. And could prohibit the people in that country from coming here at all, to the States?

THE "FUNDAMENTAL LIMITATIONS" WISELY ELASTIC.

The SOLICITOR-GENERAL. I am disposed to think that goes along with the other. I will, however, discuss that phase of the question later. But let me say here, with respect to these extreme illustrations of what might be done under a claimed power, that I understand this court has repeatedly taken the position that although a certain thing is not expressly prohibited, still if it is arbitrary and tyrannical, destructive of fundamental rights, and, therefore, opposed to fundamental principles, the court will find a way to protect the people against it. In the opinions of this court, where power in Congress has been upheld, carefully guarded language has been used, so as to leave the court free to protect the people, in case Congress should exercise such power in a way destructive of fundamental rights. Thus, in the case of Knowlton v. Moore, in which the court upheld the graded feature of the legacy tax, the following language is used (178 U. S., 109):

The grave consequences which it is asserted must arise in the future if the right to levy a progressive tax be recognized, involves in its ultimate aspect the mere assertion that free and representative government is a failure, and that the grossest abuses of power are foreshadowed unless the courts usurp a purely legislative function. If a case should ever arise where an arbitrary and confiscatory exaction is imposed, bearing the guise of a progressive or any other form of tax, it will be time enough to consider whether the judicial power can afford a remedy by applying inherent and fundamental principles for the protection of the individual, even though there be no express authority in the Constitution to do so.

The people of the State, through its constitution and laws, can provide for the trial of capital or otherwise infamous crimes, upon information and without indictment, and without a jury, and they have

done so; and they can do away with the trial by jury in civil cases, and they have done so; and they can do many other things which I need not enumerate.

TRIAL BY JURY IN THE NEW POSSESSIONS.

In other words, the right of the people of the States to change their laws and system of procedure so as to conform them to changed views of administration, or the developing exigencies of their social life, has been sustained. And now, I ask the question, if the Constitutional guarantees relating to indictment by a grand jury and trial by a petit jury do not tie the hands of the inhabitants of a Territory when organizing a State, why should they be held to tie the hands of the President and Congress in preserving order and protecting life and property in our new possessions?

It is a strange contention that as soon as the treaty went into effect the power of the President and Congress to preserve order in the new possessions ceased. There were no grand juries, no petit juries, no machinery for punishing crime by the processes of the Anglo-Saxon law; and yet, according to the contention of the other side, if all the limitations of the Constitution apply everywhere throughout the scope of its authority, crime could be punished in no other way. The Constitution which gave the United States power to acquire territory by treaty and imposed upon Congress the duty of disposing of and governing it, did not leave the National Government helpless by demanding impossibilities. Until the progress of the people of the newly acquired territory will permit of the organization of courts and juries after our system, these guarantees must be held inoperative, or the preservation of peace and order, and the protection of life and property under the civil government be abandoned. The situation resembles that discussed in the case of In re Ross (140 U. S., 453), which I commend to opposing counsel, who contend that everywhere throughout the scope of authority of the United States under the Constitution, all limitations apply. In that case, a conviction of murder by a consular court in Japan, acting under an act of Congress, and therefore under authority of the Constitution, without a jury, and upon information, was sustained. Mr. Justice Field said, respecting these guarantees of an indictment and trial by jury in criminal cases (p. 464):

And, besides, their enforcement abroad in numerous places. where it would be highly important to have consuls invested with judicial authority, would be impracticable from the impossibility of obtaining a competent grand or petit jury. The requirement of such a body to accuse and to try an offender would, in a majority of cases, cause an abandonment of all prosecution.

DUTIES COLLECTED UNDER THE PORTO RICAN ACT.

Having discussed as fully as I intend, the general question, I pass to the consideration of the Porto Rican act. This act provides that on and after a certain date the duties imposed by the Dingley law on goods brought into the United States shall be levied and collected on all articles imported into Porto Rico from ports other than those of the United States, with three exceptions: