Editorial Department to such duties, imposts, and excises as Con gress may impose for the support of the Federal Government regarded as a govern ment of the States; and that the prohibition of preferences to the ports of one State over those ot another should be limited in the same way. . . . It is difficult to conceive any reasonable objection which could be made to the holding that the doctrine of uni formity as to imposts, duties, and excises, like the rule of apportionment of capita tion and other direct taxes, should be limited to the power of Congress to raise revenue for general purposes. The application of the line of decision above suggested to the question in the Ha waiian Case, that is, the effect of the Fifth and Sixth Amendments on proceedings in ter ritorial courts, would perhaps be more diffi cult, and yet a satisfactory solution might easily be reached. The contention on the one hand would be that as the only judiciary directly contemplated by the Constitution is the Federal judiciary, exercising its power within territory included in State limits, these amendments have no application to territorial courts which are not created or authorized in pursuance of the judiciary ar ticle, but are provided for or authorized by Congress under the authority to legislate for the government of the territories On the other hand, it could be contended that these amendments forming part of the Bill of Rights were incorporated into the Con stitution as a result of the fear that too great a measure of pcfwer was being given to the Federal Government, and the conviction that Congress should be limited as State legislatures had already been limited in State constitutions for the protection of individ ual rights, and were intended to apply to the exercise of any power vested in Congress by the Constitution, including the power to make rules and regulations for territory not within State limits. The latter of these views i seems to the writer of this paper to be mure in consonance with the principles of our con stitutional government. If it is admitted that the framers of the Constitution contem plated the exercise by Congress of the power
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of providing territorial governments, it can hardly be conceived that they intended to give to Congress unlimited power in this re spect. It must be borne in mind that the protection of individual rights and property against the undue exercise of governmental power was an ever-present motive in the framing of the State and Federal Constitu tions; and that the rights thus protected were not conceived of as the rights of any particular persons, but of all persons, it is hardly imaginable that the framers of the Constitution, having in mind the principles of the Declaration of Independence, would have deliberately contemplated the subjec tion of any class of people who should come within the jurisdiction of the United States to an arbitrary and unlimited power which they did not tolerate for themselves. UNDER the title "Is Congress a Conserva tor of the Public Morals?" William A. Suth erland, in the American Laiv Rcviav, cri ticises the decision of the Federal Su preme Court in the lottery case of Cham pion v. Ames, 188 U. S. 321, in which the de cision was "that lottery tickets are articles of commerce, and that their transportation from State to State by common carrier is in terstate commerce, which Congress, under the power to regulate, may prohibit." Mr. Sutherland puts three questions: First. In the light of prior decisions of the court can a lottery ticket be said to be an "article of commerce? Under this head the argument is, in part, as follows: In the early case of Paul v. Virginia [8 Wall. 182], the Supreme Court established a rule that has ever since been adhered to, viz., that the issuing of a policy of insurance is not a transaction of commerce; that the policy is not an article of commerce; and that it is not an interstate transaction, al though the parties reside in different States. The reasoning upon which the conclusion as to the nature of a policy is based is very con cisely stated in Hooper r. California [155 U. S. 65.4]. There the court lays down a rule which may be applied in every case in
