The Savannah morning news., 1901-05-28

winch would render the annexation of
distant possessions desirable. If those
possessions are inhabited by alien races,
differing from US in religion, customs,
laws, methods Of taxation and mode of
thought, the administration of govern
ment and justice, according to Anglo
saxon principles, may for a time be i'm
possible; and the question at once arises
whether large concessions ought not to
be made for a time, that, ultimately, cur
own theories may be carried out and
the blessings OF free government 1 nder
the constitution extended to them. We
decline to hold that there is anything in
the constitution to forbid such acti)n."
Justice Whites Opinion.
Following Justice Browns opinion In
the Downes case Justice White delivered
an opinion, in which he said Justices Shi-
ras and McKenna united, concurring In
the decree affirming the judgment of the
DoWnes case, but placing it on grounds
Whlch he said were not only different
from, but in conflict with those expressed
by Justice Brown. The question at issue
IN shis case, he said, was whether
the provision of the constitution
giving Congress power to lay duties, i'm
posts and excuses, but requiring that they
should be uniform, throughout the Unit
ed States" had been violated by the Fora
ker act imposing duties on goods coming
from Porto Rico into the United STATES
There never could be any serious ques-
ton that when the government of the
United States exercises an authority
which the constitution confers that the
applicable limitations of the constitution
control it. Certain general limitations
We're everywhere applicable, and of course
could never be transgressed. In view of
this, the opinion went on, there is in
reason, then, no room in this case to con-
tend that Congress can destroy the lib
critics of the people of Porto Rico by ex-
ercising in their regard powers against
freedom and justice which the constitu-
ton has absolutely denied"
The sole and only issue is, had Porto
Rico, at the time of the passage of the
act in question, been incorporated into
and become an integral part of the United
States?
Considering this question Justice White
affirmed that the rule of international
law was that the relation which an ac-
CURED country would bear the acquiring
country in the absence of treaty stipula-
tons was to be determined by that coun-
try conformably to its institutions. The
United States possessed the same power
on this subject as any other nation.
Justice White summarized his views as
follows:
at is then, as think, individually set
tied by the principles of the law of ma
tons, by the nature of the government
created under the constitution, by the
express and implied powers conferred
upon that government by the constitu-
ton, by the mode in which those powers
have been executed from the beginning,
and by an unbroken line of decisions of
this court, first announced by Marshall
and followed and lucidly expounded by
Taney, that the treaty-making power can
not incorporate territory into the United
States without the express or implied as
sent of Congress, that it may insert In a
treaty conditions against immediate cor
poration- 1t must follow, therefore, that
where treaty contains no conditions for
Incorporation, and above ALL where it not
only has no such conditions, but express
ly provides to the contrary, that incor-
poration does not arise until in the wis
dom of Congress it is deemed that the
acquired territory has reached that state
where 1t is proper that it should enter
into and form a part of the American
family"
Attention was then called to the fact
that the treaty of peace expressly pro-
vided that the civil rights and political
status of the inhabitants of the islands
should be determined by Congress; and
W
Porto RicO's Dual Status.
THE result of what has been said is
that whilst, in an interna tional sense.
Porto Rico was not a foreign country it
was foreign to the United States i'm do
mestic sense, because the island had not
been Incorporated into the United States,
but was merely appuNenant thereto as a
possession. AS a necessary consequence
the impost in question assessed on mer-
chandiee coming from Porto Rico into the
United States after the cession was
within the power of Congress, and that
body was not, moreover, as to such i'm
post, controlled by the clause requiring
that imposts should be uniform through
out the United States; in other words,
the provision of the constitution just re-
ferred to was not applicable 40 Congress
in legislating for Porto Rico"
In concluding, it was said that the
question when Porto Rico was to be in
corporated was a political question, to be
determined by the American people,
speaking through Congress. and was not
for the courts to determine.
Justice Gray announced his concurrence
in the majority's conclusion in the
Downes case and in doing so said in sub
stance:
The civil government of the United
States cannot extend Immediately and Of
it's own force over territory acquired by
war So long as Congress has not incor-
porated the territory into the United
States, neither military occupation nor
eession by treaty makes the conquered
territory domestic territory in the sense
of the revenue laws. But those laws con-
corning foreign countries" remain APP
plicable to the conquered territory until
| changed by Congress.
If Congress is not ready to construct a
| complete government of the conquered
territory It may establish a temporary
| government. which is not subject TO all
the restrictions of the constitution.
Chief Justice Fuller Dissents.
The chief dissenting opinion in the
| Downes case was announced by Chief
Justice Fuller Justices Harlan, Brewer
and Peckham joining in the dissent. He
said the majority, though widely differ
| ing in their reasoning, seemed to concur
| in the view that Porto Rico belongs to
| the United States. but nevertheless is
not a part OF the United States subject
| to the provisions of the constitution In
| respect of taxes. 1t was admitted that
| on its face the part of the Foraker act
with reference to duties did not comply
with the rule of uniformity prescribed by
the constitution. The constitutional uni
| formity is geographical uniformity.
But" the opinion continues. cit was said
| that Congress exercises unlimited powers
| OF government in dealing with the terri
tories, and. moreover that these duties
are merely local taxes.