The times. [volume] (Washington [D.C.]) 1897-1901, 1901-01-10


torney General. This conclusion is in
eVitable. and the American Republic pre-
sents TO the world the unique exhibition
OF a Government partly domestic an
partly foreign, with all OF it's executiv
machinery operating outside of its Con
stitutional and territorial limits. Accord
ing to the theory of the advocates of tn
Porto Rican tariff the American Con
gress composed Of the Senate and Hous
OF Representatives is holding its sessions
and enacting laws outside of the country
and II not on foreign soil, at least, upo1
land over which the Constitution doe.
not extend"
Mr. Hart argued that the Constitution
extended over the territory of the Unitet
States as well as of the States, and ha(
done so from the beginning. He quoted
from the treaty of peace between the
United States and Great Britain in 1888
in which the boundaries of the United
States were specifically set forth. and
they included all territory between the
| Great Lakes and the thfrty-first parallel
| of north latitude and east of the Missis-
| sippi River. Three fourths of this vas
! unorganized territory. President Wash
| ington, by his acts and messages, gave
| evidence of his belief that the territory
was part of the United States and that
| the Constitution extended over it. The
! last point presented by counsel was that
the executive order establishing a tariff
law for Porto Rico was a piece Of legis-
| lation and unconstitutional.
Mr.. Justice Harlan-Who should have
! issued such an order?
| Mr.. Hart-No one, in my opinion. 1t
| was wholly unwarranted. | am not much
of a judge of such matters, but | think
! the law thus promulgated is a very good
one. Our President, whom we all admire,
iG ornha n he Ine+ ed h.
| country to write tariff law. The trou-
BILE is that he became so accustomed to
/ ii while a member of Congress that he
has kept at 1t ever since.
This sally evoked smiles from the bench
and bar The court took its lunch recess
at the conclusion of Mr. Harris remarks.
Mr.. Wards Contentious.
After the recess the two cases of Dooley.
Smith & Co. against the United States
were stated to the court by Mr.. Henry NJ.
Ward. The plaintiffs were citizens of the
United States, he said, and transacting
business both in New York and Porto
Rico. The customs dues sought to be re-
covered in these cases were paid on ship
ments made subsequent to the ratifica-
tion CT the treaty between the United
States and Spain, April II, 1899, under the
Foraker act. and the suits to recover were
filed under the provisions of the Foraker
act of 1877. They came to the Supreme
Court on writs of error to the Circuit
Court for the southern district of New
York, where it was held that the petition
did not state facts sufficient to make
cause of action.
Mr.. Ward followed in the steps of his
predecessors in the matter Of points pre-
sented for consideration. Particular stress
was laid upon the third contention argu-
ment-the President had not the power OF
the Constitution to force the order of
January 20, 1899, in so far as 1t imposed
duties upon articles of merchandise
brought into Porto Rico from other parts
of the United States. Mr.. Ward said he
differed from the position taken by Mr..
Hart In regard TO this mater. Mr. Hart
said that under the military occupation the
President should have done as General
Miles had-continued the operation of the
ola Spanish tariff until Congress should
act. Mr.. Ward said that in his opinion the
President. Immediately after Porto Rico
had become part of the United States, by
the operation of the treaty with Spain, I.
should have extended the United States (
tariff laws over the island
Discussing the Foraker law. Mr. Ward /
made new point-that it was not en-
titled to the presumption Of constitution (
ality attributed to acts OF Congress gen.
d
because it was in the nature of a make /
shift to expire by limitation on March 1, /
1902
For the Governments.
Solicitor General Richards opened the |
argument for the Government, paying at |
tention at first to questions of jurisdic- I
tion raised by counsel in the several !
cases. This. he said. he did. not for the |
purpose of having the cases go off on /
but that the Government |
should not be considered as acquiescing
in what it believes to be a wrong form
of procedure. That followed in the
Goethe case, argued last month, he said, |
was the proper one to be pursued In
the Downes case there was not sufi-
cient sum of money involved to give the
Federal courts jurisdiction. Two thou
sand dollars was the minimum sum that
could be pleaded. while the record show
ed that but $500 was involved
Mr.. Justice Harlan-In revenue cases?
Mr.. Richards-But counsel insists that
these are not revenue cases; that they
are common law actions to recover
money. If they were revenue cases there
IS no Jurisdiction.
In order to present the important
questions involved in the. cases, clear
y and concretely, the Solicitor Gen
eral said it would be desirable for him
% describe the several classes of duties
collected and which 1t was sought to re-
over.
Duties exacted in Porto Rico by the
President prior to the treaty were right
,ully imposed by the President acting
Inder belligerent right. and Mr.. Rich
lrds said he could see no reason for at
acking the imposition of them. Coun-
sells contention that the signing of the
protocol ended the right of the Presi-
lent to govern Porto Rico under the war
Jower was so absurd that to state it was
o refute it. Upon this point the Solicit
or General said:
The authority of the President to
govern territory acquired under the war
md treaty making power until Congress
ices fit to act is amply sustained by the
decisions of this court. While the source
# this authority is belligerent right, the
itself is not limited to purely
matters, but extends to the
upied territory.
The Presidents Object.
The object of the President is TO es-
ablish and maintain a provisional civil
government for the preservation of order
ana the protection of life. liberty, and
property pending the action Of Congress.
all those things which can
De dealt with by a civil government
when established by Congress may be reg
Hated by the provisional government it
self during the so-called military occu-
patton. The source of authority in the
'ase of provisional government is the
President, the laws and ordinances are