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In discussing this question, and particularly of the power of Congress to levy and collect taxes, duties, imposts, and excises, Mr. Justice Miller observed: "Is the word 'impost,' here used, intended to confer upon Congress a distinct power to levy a tax upon all goods or merchandise carried from one State to another? Or is the power limited to duties on foreign imports? If the former be intended, then the power conferred is curiously rendered nugatory by the subsequent clause of the ninth section which declares that no tax shall be laid on articles exported from any State, for no article can be imported from one State into another which is not at the same time exported from the former. But if we give to the word 'imposts' as used in the first mentioned clause, the definition of Chief Justice Marshall, and to the word 'export? the corresponding idea of something carried out of the United States, we have, in the power to lay duties on imports from abroad, and the prohibition to lay such duties on exports to other countries the power and its limitations concerning imports."

It follows, and is the logical sequence of the case of Woodruff v. Parkham, that the word “export" should be given a correlative meaning and applied only to goods exported to a foreign country, Muller v. Baldwin, L. R. 9 Q. B. 457. If, then, Porto Rico be no longer a foreign country under the Dingley Act, as was held by a majority of this court in De Lima v. Bidwell, 182 U. S. 1, and Dooley v. United States, 182 U. S. 222, we find it impossible to say that goods carried from New York to Porto Rico can be considered as “exported” from New York within the meaning of that clause of the Constitution. If they are neither exports nor imports, they are still liable to be taxed by Congress under the ample and comprehensive authority conferred by the Constitution “to lay and collect taxes, duties, imposts and excises.” Art. 1,

sec. 8.

These duties were properly collected, and the action of the Circuit Court in sustaining the demurrer to the complaint was correct, and it is therefore

Affirmed.

Sub-Section B.

THE EXTENSION OF THE CONSTITUTION TO THE TERRITORIES.

MORMON CHURCH v. UNITED STATES.

136 U. S., 1. 1890.

By virtue of an express reservation in the organic act of the Territory of Utah of the power to disapprove and annul the acts of its legislature, Congress on February 19th, 1887, repealed the act of incorporation of the Church of Jesus Christ of Later Day Saints (The Mormon Church), for the reason that one of the principal objects of the Mormon Church was the promotion and practice of polygamy, which was prohibited by the laws of the United States.

In a proceeding under the Act of February 19, 1887, the Supreme Court of the Territory of Utah decreed that the Corporation of the Church of Christ of Later Day Saints was dissolved, whereupon the Church appealed to the Supreme Court of the United States, contending that Congress had no power to pass the Act of 1887.

MR. JUSTICE BRADLEY delivered the opinion of the court.

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. The supreme power of Congress over the Territories and over the acts of the territorial legislatures established therein is generally expressly reserved in the organic acts establishing governments in said Territories. This is true of the Territory of Utah. In the sixth section of the act establishing a territorial government in Utah, approved September 9, 1850, it is declared that the legislative powers of said Territory shall extend to all rightful subjects of legislation, consistent with the Constitution of the United States and the provisions of this act.

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All the laws passed by the legislative assembly and governor shall be submitted to the Congress of the United States, and if disapproved shall be null and of no effect. 9 Stat. 454.

The decree of the Supreme Court of Utah is affirmed.

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HAWAII v. MANKICHI.

190 U. S., 197. 1903.

This was a petition by Mankichi for a writ of habeas corpus to obtain his release from the Oahu convict prison, in Hawaii, where he was confined upon conviction for manslaughter. He alleged a violation of the Constitution in that he was tried upon an indictment not found by a grand jury, and convicted by the verdict of nine out of twelve jurors, the other three dissenting from the verdict. In support of his contention, Mankichi cited the Newlands Resolution of July 7, 1898, annexing Hawaii, which provided that, “The municipal legislation of the Hawaiian Islands, not contrary to the Constitution of the United States, shall remain in force until the Congress of the United States shall otherwise determine.” Mankichi's conviction was in accord with the municipal law of Hawaii, but he claimed this law violated Article V of the Amendments to the Constitution, which provides that "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury," and Article VI of the Amendments, which provides that "In all criminal prosecutions the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed.” The Supreme Court has interpreted this clause in regard to a jury trial to mean a trial by a common law jury of twelve men who shall render an unanimous verdict. From an order of the United States District Court discharging the prisoner the Attorney-General of the Territory appealed to the Supreme Court of the United States.

MR. JUSTICE BROWN delivered the opinion of the court.

If the negative words of the resolution, "nor contrary to the Constitution of the United States," be construed as imposing upon the islands, every provision of the Constitution, which must have been unfamiliar to a large number of their inhabitants, and for which no previous preparation had been made, the consequences in this particular connection would be that every criminal in the Hawaiian Islands convicted of an infamous offense between August 12, 1898, and June 14, 1900, when the act organizing the territorial government took effect, must be set at large; and every verdict in a civil case rendered by less than a unanimous jury held for naught. Surely such a result could not have been within the contemplation of Congress. It is equally manifest that such could not have been the intention of the Republic of Hawaii in surrendering its autonomy. Until then it was an independent nation, exercising all the powers and prerogatives of complete sovereignty. It certainly could not have anticipated that, in dealing with another independent nation, and yielding up its sovereignty, it had denuded itself by a negative pregnant, of all power of enforcing its criminal laws according to the methods which had been in vogue for sixty years, and was adopting a new procedure for which it had had no opportunity of making preparations.

It is not intended here to decide that the words "nor contrary to the Constitution of the United States," are meaningless. Clearly they would be operative upon any municipal legislation thereafter adopted, and upon any proceedings thereafter had, when the application of the Constitution would not result in the destruction of existing conditions conducive to the peace and good order of the community. Therefore we should answer without hesitation in the negative the question put by counsel for the petitioner in their brief: “Would the municipal status of Hawaii, allowing a conviction of treason on circumstantial evidence, or the testimony of one witness, depriving a person of liberty by the will of the legislature and without process, or confiscating private property for public

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use without compensation, remain in force after the annexation of the Territory to the United States, which was conditioned upon the extinction of all legislation contrary to the Constitution?" We would go even farther, and say that most, if not all, the privileges and immunities contained in the bill of rights of the Constitution were intended to apply from the moment of annexation; but we place our decision of this case upon the ground that the two rights alleged to be violated in this case are not fundamental in their nature, but concern merely a method of procedure which sixty years of practice had shown to be suited to the conditions of the islands, and well calculated to conserve the rights of their citizens to their lives, their property, and their well being. The decree of the District Court for the Territory of Hawaii

must be reversed, and the case remanded to that court with instructions to dismiss the petition.

Note.-In Rassmusen v. U. S., 197 U. S. 516, the Supreme Court held that trial by jury is a constitutional incident to judicial procedure in 'Alaska because under the terms of the treaty and by subsequent act of Congress Alaska has been incorporated into the United States.

GONZALES v. WILLIAMS.

192 U. S.. 1. 1904.

This was an appeal by Isabella Gonzales from an order of the Circuit Court of the United States for the Southern District of New York, dismissing a writ of habeas corpus issued on her behalf, to secure her release from the custody of the United States Commissioner of Immigration at the port of New York. It appeared that Isabella Gonzales, an unmarried woman, was born and resided in Porto Rico, and was an inhabitant thereof on April 11, 1899, the date of the proclamation of the treaty of Paris; she arrived at the port of New York from Porto Rico, August 24, 1902, when she was prevented from landing and detained as “an alien immigrant," in order that she might be returned to Porto Rico if it appeared that she was likely to become a public charge. If she was not an alien immigrant within the intent and meaning of the Act of Congress (Act March 3, 1891, relative to immigration) the commissioner had no power to detain or deport her.

MR. CHIEF JUSTICE FULLER delivered the opinion.

The treaty ceding Porto Rico to the United States was ratified by the Senate, February 6, 1899; Congress passed an act to carry out its obligations March 2, 1899; and the ratifications were exchanged and the treaty proclaimed April 11, 1899. Then followed an act entitled "An act temporarily to provide remedies and civil government for Porto Rico, and for other purposes," approved April 12, 1900.

By section 7 the inhabitants of Porto Rico, who were Spanish subjects on the day the treaty was proclaimed, including Spaniards of the Peninsula who had not elected to preserve their allegiance to the Spanish Crown, were to be deemed citizens of Porto Rico, and they and citizens of the United States residing in Porto Rico were constituted a body politic under the name of the People of Porto Rico. Gonzales was a native inhabitant of Porto Rico and a Spanish subject, though not of the Peninsula, when the cession transferred her allegiance to the United States, and she was a citizen of Porto Rico under the act. And there was nothing expressed in the act, nor reasonably to be implied therefrom to indicate the intention of Congress that citizens of Porto Rico should be considered as aliens and the right of free access denied to them. Counsel for the government contends that the test of Gonzales' rights was citizenship of the United States, and not alienage. We do not think so, and on the contrary, are of opinion that if Gonzales was not an alien within the act of 1891, the order below was erroneous,

* We cannot concede, in view of the language of the treaty and of the act of April 12, 1900, that the word "alien" so used in the act of 1891, embraces the citizens of Porto Rico. We are not required to discuss the power of Congress in the premises; or the contention of Gonzales' counsel that the cession of Porto Rico accomplished the naturalization of its people; or that of Commissioner Degatau, in his excellent argument as amicus curiae, that a citizen of Porto Rico, under the Act of 1900 is necessarily a citizen of the United States. The question is the narrow one whether Gonzales was an alien within the meaning of that term as used in the Act of 1891.

Final order reversed and cause remanded with a direction to discharge Gonzales.

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