nevertheless not local in their nature, but are imposed as in the exercise of national powers. The levy is clearly a regulation of commerce, and a regulation affecting the States and their people as well as this Territory and its people. . . . . . In In any point of view, the imposition of duties on commerce operates to regulate commerce, and is not a matter of local legislation; and it follows that the levy of these duties was in the exercise of the national power to do so, and subject to the requirement of geographical uniformity."

Lastly, it may be said in objection to the doctrines declared in the Downes case, that in attempting to give to Congress a right to legislate for certain Territories under United States sovereignty, free from certain limitations placed by the Constitution upon its powers, there is seriously weakened, if not, from a strictly logical standpoint, absolutely destroyed, that most fundamental principle of our constitutional jurisprudence according to which all the provisions of the Constitution are equally binding upon Congress. The distinction that is made between the absolute prohibitions of legislative power and the limitations imposed by the Constitution upon the exercise of the powers that are granted, is clearly not calculated to support the conclusion that Congress under certain circumstances may disregard the latter when it may not the former. As Chief Justice Fuller declared in his dissenting opinion: "It is idle to discuss the distinction between a total want of power and a defective exercise of it;" and again, "The powers delegated by the people to their agents are not enlarged by the expansion of the domain within which they are exercised. When the restriction on the exercise of a particular power by a particular agent is ascertained, that is an end to the question. To hold otherwise is to overthrow the basis of our constitutional law." Mr. Carlisle in the address from which we have already once quoted, has also shown so clearly the fallacy of the argument of the prevailing opinion upon this point we may quote his words. He says: "The distinction attempted to be taken between the obligatory force of absolute prohibitions upon the power of Congress and the obligatory force of limitations and qualifications im

posed by the Constitution upon the exercise of its powers over a particular subject, cannot, in my opinion, be sustained by any sound process of reasoning. It is true that there is a difference in degree between an absolute denial of all power to do a particular thing and a grant of power to do that thing to a limited extent, or in a prescribed manner only; but the absolute prohibition and the express or implied limitation are equally obligatory upon Congress. It is bound to obey both or its act is void.. To say that Congress, in legislating for a Territory, is not bound by the constitutional limitations upon a granted power, but is or may be bound by the express prohibitions, is simply to assert that all parts of the Constitution are not of equal force and effect as restraints upon legislation, and that a power not granted may be constitutionally exercised if it is not expressly prohibited, a theory, which, if sanctioned by the judiciary, would at once revolutionize the government. It would no longer be a government of enumerated and delegated powers, but would possess the whole mass of sovereign power which is now vested in the people, subject only to the comparatively few express prohibitions."

It will have been seen that the net result of the decision in Downes v. Bidwell, whether we follow the reasoning of Justice Brown, or of the four justices who concurred in the judgment rendered, is that as to Territories which have not been incorporated into the United States (or, according to Justice Brown, over which the Constitution has not been extended by act of Congress) Congress is not limited by some of the restrictions enumerated or implied in the Constitution. Just which of these limitations do not, in such cases, control Congress, it remains for the Supreme Court to determine in each particular case as the point arises.

In Downes v. Bidwell it was held that the restriction that “all duties, excises, and imposts shall be uniform throughout the United States" does not apply.

§ 181. Status of Hawaii: Hawaii v. Mankichi.

In Hawaii v. Mankichi" it was held that the provisions of the Fifth and Sixth Amendments with reference to indictment by a 11 190 U. S. 197; 23 Sup. Ct. Rep. 787; 47 L. ed. 1016.

grand jury and trial by petit jury, also did not apply. The facts and questions of law involved in this case were these. The Joint Resolution of Congress of July 7, 1898, had provided for the annexation of the Hawaiian Islands "as a part of the territory of the United States, and subject to the sovereign dominion thereof." The Resolution, indeed, expressly declared that “The municipal legislation of the Hawaiian Islands . . . not inconsistent with this Joint Resolution, nor contrary to the Constitution of the United States, nor to any existing treaty of the United States, shall remain in force until the Congress of the United States shall otherwise determine." After the annexation to the United States, Congress not having determined otherwise, the defendant in error, Mankichi, was tried for and convicted of manslaughter according to the usual course of procedure in force in the Republic of Hawaii prior to July 7, 1898, which course of procedure did not require the indictment to be found by a grand jury, and which permitted a less number than the entire twelve of the petit jury to convict. An application for a writ of habeas corpus having been made by Mankichi upon the ground that, according to the Constitution of the United States, no one might be tried for manslaughter except upon an indictment or presentment found by a grand jury, nor convicted except by a unanimous petit jury, and the case having been appealed to the Supreme Court of the United States, that tribunal was called upon to determine: first, whether it was the intention and the necessary effect of the annexing Joint Resolution to make these constitutional provisions immediately applicable to the islands; and secondly, if it did not, whether it lay within the power of Congress or of the authorities of Hawaii to deny to the accused the rights in question. Both of these questions the majority of the court, five justices, answered in the affirmative.

Here, however, as in Downes v. Bidwell, the justices constituting the majority did not agree in their reasoning. Justice Brown, in his opinion, admitting that a literal interpretation of the Resolution would support Mankichi's claim, but arguing ab inconvenienti, asserts that it could not have been the intention of

Congress "to interfere with the existing practice, when such interference would result in imperilling the peace and good order of the islands." "Of course under the Newlands resolution," he continues, " any new legislation must conform to the Constitution of the United States; but how far the exceptions to the existing municipal legislation were intended to abolish existing laws must depend somewhat upon circumstances. Where the immediate application of the Constitution required no new legislation to take the place of that which the Constitution abolished, it may be well held to have taken immediate effect; but where the application of a procedure hitherto well known and acquiesced in left nothing to take its place, without new legislation, the result might be so disastrous that we might well say that it could not have been within the contemplation of Congress. In all probability the contingency which has actually arisen occurred to no one at the time. If it had, and its consequences were foreseen, it is incredible that Congress should not have provided against it. 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 provisions 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 municipal statutes of Hawaii, allowing a conviction of treason on circumstantial evidence, or on the testimony of one witness, depriving a person of liberty by the will of the legis lature and without process or confiscating private property for public use without compensation, remain in force after an annexation of the territory to the United States, which was conditioned upon the extinction of all legislation contrary to the Constitution?' We would even go 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."

In a concurring opinion Justices White and McKenna base their conclusion on the doctrine that by the annexing Resolution Congress had not intended to incorporate the islands eo instanti into the United States. With regard to the provision that the municipal legislation of Hawaii not contrary to the Constitution of the United States should remain in force, they say: "Now, in so far as the Constitution is concerned, the clause subjecting the existing legislation which was provisionally continued to the control of the Constitution, clearly referred only to the provisions of the Constitution which were applicable, and not to those which were inapplicable. In other words, having, by the resolution itself, created a condition of things absolutely incompatible with immediate incorporation, Congress, mindful that the Constitution was the supreme law, and that its applicable provisions were operative at all times, everywhere, and upon every condition and persons, declared that nothing in the Joint Resolution continuing the customs legislation and local law should be considered as perpetuating such laws, where they were inconsistent with those fundamental provisions of the Constitution which were, by their own force, applicable to the territory with which Congress was dealing."

Chief Justice Fuller and Justices Brewer, Peckham, and Harlan dissented. The first three of these, after adverting to the impropriety of an argument ab inconvenienti, content themselves simply with the statement that, as a matter of fact, the provision of the resolution of annexation which has been quoted above, validating all existing legislation, except such as might be contrary to the Constitution of the United States, should be construed as having extended over the islands the Fifth and Sixth Amend