governor was officially notified that a treaty of peace had been made with Mexico, and that Upper California had been ceded to the United States. Upon receiving this intelligence, the governor directed that duties should hereafter be levied in conformity with the general tariff law of the United States. Congress had not passed an act to extend the collection of tonnage and import duties to the ports of California. The action of the governor was upheld; and it was held that the duty was properly paid under the tariff laws of the United States, and that money so paid could not be recovered. The opinion of the court contains the following statement of the law : By the ratifications of the treaty, California became a part of the United States. And, as there is nothing differently stipulated in the treaty with respect to commerce, it became instantly bound and privileged by the laws which Congress had passed to raise a revenue from duties on imports and tonnage.'

Chief Justice Marshall, in Loughborough v. Blake,† decided in 1820, expressed the opinion the term "United States," in that clause of the Constitution which requires all duties, imposts, and excises to be "uniform throughout the United States," included the territories as well as the States. "Does this term," he asked, "designate the whole or any particular portion of the American Empire? Certainly, this question can admit of but one answer. It is the name given to our great republic, which is composed of States and territories. The District of Columbia or the territory west of the Missouri is not less within the United States than Maryland or Pennsylvania; and it is not less necessary, on the principles of our Constitution, that unformity in the imposition of imposts, duties, and excises, should be observed in the one than in the other."

The truth of the matter would seem to be that Congress, in the exercise of the power to lay and collect duties, imposts, and excises, must so frame the law that all duties, imposts, and excises shall be uniform throughout the United States; that the term "United States" includes all annexed territory; that, where an act of Congress is necessary to include newly annexed territory within a collection district, it is plainly the duty of Congress to enact such legislation, and its failure to do so would result in a condition of things contradictory to the intent of the Constitution. After a

treaty of cession has been ratified, duties can be fixed by action of the President as the head of a military government established by him; but such action is only a temporary expedient, and cannot be of permanent nature. That Congress, when it comes to legislate upon the subject, cannot establish one tariff law for Hawaii or for Porto Rico and a different one for the remainder of the United States, but the law which it enacts must be uniform throughout all our possessions.

So far as the statutes of the United States are concerned, it is conceded that the geographical limits of federal statutes are the national boundaries on the day of enactment. If our domain is expanded, our statutes are not ex proprio vigore expanded also. The Dingley tariff, for example, is limited in its operation to the area of the United States as it existed July 24, 1897. To give it force in the territories subsequently acquired, a special act extending it is necessary. But any tariff law that Congress enacts hereafter will apply to all territory previously acquired.

3.

THE TENDENCY OF THE COURTS TO SUS-
TAIN SPECIAL LEGISLATION.

BY HON. JOHN WOODWARD, JUSTICE NEW YORK SUPREME COURT.

[Read Thursday morning, September 7.]

There will be no attempt to deal with the problems of that "higher law," so eloquently discussed by Mr. Seward in the stormy years of debate that foreran the War of the Rebellion, nor yet to suggest the limitations which should govern in the interpretation of the Federal Constitution in dealing with great national problems. Lucian, the great Greek writer, who practised the profession of law at Antioch, where the disciples were first called Christians, before there were any Christians, lays down the rule, "Quidquid multis peccatur, inultum est " (The guilt which is committed by many must pass unpunished); and this limitation upon the law has been recognized in all nations in all times.

To suppose that written constitutions or judicial decrees can stand in the way of national destiny, or that any duty rests upon the judiciary to interpret the Constitution so that it shall appear as a barrier in the pathway to the highest evolution of the national life, is to suppose the finite to transcend the Infinite, and to be guilty of an egotheism at once impious and impracticable.

All of the edicts which have issued since the strong assumed dominion over the weak, before tradition began in rude and imperfect accent to chant the story of past events, could not have opposed a single obstacle to the awful impact of Goth and Vandal upon the war-worn nations of Europe. All of the constitutions since written in the blood and sacrifice of lofty aspiration, supported by all the decrees that have been handed down by judicial tribunals since society called on wisdom to sit in judgment on the failings and mistakes of men, could not have stayed the avenging hosts who swarmed the highways of Europe, following the cross toward the desecrated tomb of the Saviour, moved as by a common impulse by the persuasive oratory of Peter the Hermit. Not all of these could have stood before the invincible hosts who

followed the banners of Oliver Cromwell, the maddened populace who overturned the monarchy of France, or the aroused public conscience which demanded the overthrow of slavery in the American republic.

These are matters of the collective people, the creators of constitutions, the force which gives energy to law, without which the profoundest declarations are the absurdest of declamations.

This truth is recognized in our own Constitution, the tenth amendment, adopted at the first session of Congress after the ratification, declaring that "the powers not delegated to the United States by the Constitution, nor prohibited to it by the States, are reserved to the States respectively, or to the people "; and, while it was undoubtedly intended that this reserved power should remain inoperative unless subsequently delegated in the manner pointed out by the Constitution, there can be no doubt that there is a power higher than the Constitution, and that that power may be invoked or exercised whenever the general welfare, as voiced by the people, demands that the imposed limitations shall give way to national needs.

What may be the duties of the federal judiciary in dealing with these problems of national development may be safely left to the times and the circumstances under which they are presented; and it will be sufficient at this time to say that the Constitution, under an appreciative interpretation of the broad provisions for shaping the national policies, will not be found wanting in scope for the accomplishment of the high ideals held by those who framed the instrument, or in dealing with the new problems by which we are now confronted.

We come, then, to the consideration of State constitutions, and the attitude of the courts toward some of the inhibitions which the people have seen fit to impose upon the legislative power. There are no questions of State or national life involved. We are not called upon to consider what might be the duty of the courts if the problems presented dealt with the destiny of nations, but, recognizing that these are matters which have passed to the jurisdiction of the federal government, and appreciating the purposes of constitutions, to inquire to what extent the judiciary is warranted in going in giving force to statutes cunningly devised for the purpose of evading the inhibitions of the fundamental law of the State.

No principle of jurisprudence is better established than that the courts will not attempt to pass upon the expediency of legislation where it is not in conflict with the constitution. The rule is laid down that, the legislative power having been delegated to the senate and assembly, it is not for the courts to say that the legislature has abused the discretion vested in it by the constitution, and the only remedy for those who suffer from an improper exercise of the legislative function is to be found through legislative rather than judicial channels. There can be no quarrel with this rule. It is obviously the only one consistent with our form of government when dealing with matters within the purview of the legislature; and, if it were extended so that it should deny to both the legislature and the courts the right to judge of the expediency of matters which the people in their high sovereign capacity have withdrawn from legislative discretion, there would be no occasion for this discussion to-day.

The difficulty has been that, while the courts have been willing to sustain the legislature, they have been reluctant to support the will of the people. They have sustained, upon grounds of expediency, legislation which the wisdom of the people has discountenanced, and the power to enact which has been denied in the highest legislation known to our State.

This has resulted, not from any intention on the part of the courts to disregard the mandates of the people, but upon the theory that the acts of the legislature were entitled to the presumption of being within the limitations of the constitution, and a failure to recognize that the people had in fact acted upon these questions.

Unwilling to impute bad faith to the legislature, the courts have closed their eyes to the common knowledge of men familiar with the course of legislation, and have given the same latitude to construction in favor of local legislation which would be extended to general acts.

Local legislation is not entitled to this consideration, because, in the common experience of mankind, it does not receive the attention of the legislature in that degree which entitles it to the presumption of having been deliberately enacted. Local legislation, while going through all of the forms, is, in point of fact, almost wholly the act of two individuals, the member of assembly from the district interested and the member of the senate whose dis