The question, therefore, is not, we repeat, what newly annexed people or newly acquired territory have a right to demand, but what the organs of the Government chartered by the Constitution have a right to do. If it be urged that the restriction of the governmental agents to their limited powers will create an intolerable political situation, the court has nothing to do with this question of expediency. (Chinese exclusion cases, 130 U. S., 603.) The question of expediency is to be taken into account by the political bodies that make war or peace, that subjugate or purchase new territory, and it is not a function of the court to wrest the law from its true meaning in order to avoid the inconvenience or even the distress that may result from a careless or wanton use or misuse of governmental powers. It is, on the contrary, the function of the court to bring back the authorities to a rightful sense of their responsibilities and to a proper observance of the limitations of their functions. Nor need there be any concern with reference to the question of expediency. If the people of the United States deem it expedient that the additional powers exercised by their temporary agents should be approved and should be continued to their successors, the people can so ordain. The Constitution has provided an easy method for their so ordaining. It has not established the Supreme Court for that purpose. A constitutional amendment, if demanded by the people, can be presented in Congress and ratified by the legislatures in less time than it will take this court to unravel and determine the momentous questions involved in this case. If a revolution in our method of government and in the principles for which this Government stands is to be made, it should be made by the power which is at the base of all government-the people for whose benefit the government is made. It certainly should not be done by a court intended to be a conservator of all our institutions, and not the voice of the people, to change the form and character of those institutions. It has been sought to make a distinction between organized territory and unorganized territory, with the idea that the power of Congress over the latter is more despotic or absolute than over territory to which has been given some governmental organization. Whatever right Congress possesses must be referred back to the Constitution. There is in the Constitution no greater power or authority given to Congress over the one form of territory than over the other. All government by Congress is subject to the limitations which the Constitution itself has laid down. Whether we consider California immediately after the ratification of the treaty, or the Public Land Strip, since become a part of Oklahoma, or Alaska (to which the revenue laws were extended in 1868, before the new acquisition had been given any form or shape), or finally any full-fledged territory, no legal distinction as to the power of Congress over them can be found in any statute or constitutional provision, and no legal distinction can be found in any sound theory of government. Territorial governments are at the mercy of Congress; their privileges can be diminished; laws passed in reference to them can be repealed (U. S. v. Kagama, 118 U. S., 379). No greater power can be imagined with reference to unorganized territory. The one as well as the other must always be under the protection of the constitutional restrictions which were imposed upon Congress for the benefit of the whole nation. Alaska is not yet a Territory; Congress has only vouchsafed to erect it into a district: yet, as we have observed, the tariff laws were applied to it as early as 1868, constitutional restrictions have been applied to it, and the serfdom recognized among its native tribes has been declared illegal. (Sah Quah's Case, 31 Fed. Rep., 327.) English precedent has been invoked, but even in England the rule was long since laid down that the Crown or Parliament could not make laws for the colonies "contrary to the fundamental principles of English law," and that from any such injustice the Privy Council would hear appeals. (The Crown (Sir William Anson), 274; Campbell v. Hall, 20 St. Trials, 304; Lord Bishop of Natal, 3 Moore P. C., N. S., 115.) In sustaining the contention that the Constitution has no application to the Territories unless by action of Congress, it is conceded that no such action was taken by Congress prior to 1850 (New Mexico, Sept. 9, 1850), and the direct application of the Constitution to the District of Columbia was made by statute in 1871; but long prior to 1871 it was held-in Loughborough v. Blake-that the protection of the Constitution covered the District quite as much as the States. This court did not assent to the implied doctrine that until 1850, when Congress for the first time made the Constitution applicable to some Territories, the Constitution was paralyzed and silent with reference to that vast portion of the United States. To conclude: The significance of the present controversy lies in its commercial aspect. In order to sustain the position of the Government it was at first claimed that the Constitution was virtually nonexistent with reference to all portions of the national domain outside of the boundaries of the States. Then, with assumed generosity, this position was gradually receded from until we now see that there is no objection to extending the protection of the Constitution to the new Territories in all matters save in those which may touch the commercial gains of interested parties. A brief has been filed here "in behalf of industrial interests as deeply interested," the brief says, "in the final determination of the questions involved as the Government itself.” "Every nation in the world," says this brief, "maintains the existence of and asserts its power to tax the products from its colonies or acquired territory. Every nation in the world is expending large sums of money annually in an effort to produce its own supply of sugar, one of the home products that would be seriously affected, if not ruined eventually, if the doctrine contended for here prevails." The Secretary of War in his report for 1899 concedes "the essential limitations inherent in the very existence of the American Government," but he adds: "The people of Porto Rico have not the right to demand that duties should be uniform as between Porto Rico and the United States," notwithstanding the plight in which the island would thus be placed. (See pp. 8-9 of this brief.). In other words, the power of taxation, the power which this court has rightly characterized as the right to confiscate and destroy, must be exercised without restraint and without equality over all that portion of our country and our population not within the sacred precints of a State. The exercise of that power which fired the revolt of the American colonies, and which was so throughly curbed by the war of the Revolution, must be again revived, strengthened, and enlarged for misuse by the very people who struck it down. The statement of this proposition seems to involve its own refutation. To enlarge upon it would require the indecorous exhibition of lecturing to this court upon the principles of freedom which it has so often sustained. But as the protection of property, as well as the protection of life and liberty, is one of the essential safeguards set up by the Constitution, we may again reiterate that it was with property that the arbitrary power first tampered, and only with life and liberty when these were used in the protection of the property menaced. It is to-day property that again menaces the Constitution, and we may be pardoned if we close this brief with the words of the venerable Stephen J. Field, whose long presence upon the bench of this court is a revered memory. At the centennial anniversary of the Supreme Court he said: 66 "As population and wealth increase; as the inequalities in the condition of men become more and more marked and disturbing; as the enormous aggregation of wealth possessed by some corporations excite uneasiness lest their power should become dominating in the legislation of the country, and thus encroach upon the rights or crush out the business of individuals of small means; as popu lation in some quarters presses upon the means of subsistence, and angry menaces against order find vent in loud denunciations, it becomes more and more the imperative duty of the court to enforce with a firm hand every guaranty of the Constitution. Every decision weakening their restraining power is a blow to the peace of society and to its progress and improvement. It should never be forgotten that protection to property and to persons can not be separated. Where property is insecure the rights of persons are unsafe. Protection to the one goes with protection to the other, and there can be neither prosperity nor progress where either is uncertain." The imposition of impost duties upon the product of one portion of our territory which is not imposed upon the same product of every portion is an inequality against which conscience revolts and against which the Constitution has protected every portion of this domain. We trust that this court will once more assert the inviolability of that prescription in the Constititution and reverse the judgment of the court below. New York, 29th Dec., 1900. F. R. COUDERT, Jr., Of Counsel. |