The times., 1901-05-28

expressly declares in the Tenth Article
of Amendment. 1t viii be an evil day for
| American liberty If the theory OF gov
ernment Outside Of the supreme law Of
the land finds lodgment in our constitu-
tional jurisprudence.
Again, we are Informed that Congress
| has assumed, in its past history, that the
| Constitution goes into territories ac-
CURED by purchase or conquest only when
| and as 1t shall so direct. and we are In
| legislating the Constitu ion into all our
! contiguous Territories. This is a view of
! the Constitution that may well cause sur
| prise, if not alarm. Congress, as L have
| said has no existence except by virtue
! of the Constitution, 1t is the creature of
the Constitution, and has no powers which
| that instrument has not granted eX-
! preSsly or by necessary implication. /
| confess the thought that the mere Great
! ure of the Constitution can, at its pleas
| ure, exclude its creator from territories
acquired only by virtue of that instru-
/ ment, is one that l cannot grasp.
HINTS At INCONSISTENCY.
q reject altogether the theory that Con-
gress in its discretion, can exclude the
Constitution from a Territory which we
have held to be domestic Territory of
| the United States acquired and which
! could only have been acquired, in virtue
| Of the Constitution. l cannot agree that
1t is a domestic Territory of the United
States for the purpose of preventing the
! application of the Dingley tariff act I'M
| posing duties upon imports from foreign
! countries, but not domestic territory
and part Of the United States for the pur-
/ pose of enforcing the constitutional re-
! quirement that all duties, impOstS, and
/ eXcises imposed by Congress shall be
uniform throughout the United States. /
( do not understand how Porto Rico can he
q domestic Territory of the United States,
/ as ~ have distinctly held in De Lima vs..
| Bidwell. and yet that it is not, as Is now
I held, embraced by the words throughout
the United States The expanding future
of cur country justifying the belief that
the United States is to become what is
called a world power'-of which so much
was heard at the argument-does not JUS
tify any such Juggling with the words OF
the Constitution as would authorize the
courts to hold that the words throughout
the United States, in the taxing clause
of the Constitution. do not embrace
Territory of the United States This is
a distinction which | am unable TO make,
and which l do not think ought to be
made when we are endeavoring to ascer-
tain the meaning of a great instrument or
government
Mr.. Justice Harlan vigorously combat
ed the idea that the decision of the court
in the Neely case had any bearing on the
cases at bar There the only question at
issue was whether or not Cuba was a
foreign country, and the court said II
What use can be made of that case
said the Justice, in order to prove tnat
the Constitution is not in force proprlo
vigore In Territory of the United States
acquired by treaty, is more than 1 can
perceive"
And in conclusion: This. court has
distinctly held that the people OF the or
ganized Territories of the United states,
and the people of this District, are en-
titled to the benefit of those provlslons OF
the Constitution which protect life, liberty.
and, property against the arbitrary power
of government What will ii be but
judicial legislation for this court to say
that the express requirement of the Con-
stitution that all duties, imposts, and
excises prescribed by Congress shall be
uniform throughout the United States,
shall not apply to a Territory which this
court holds to be part of the United
States? The addition of Porto Rico TO
the territory of the United States has
been recognized by direct action upon the
part of Congress. 1t has legislated in
recognition of the treaty with Spain. II
Porto Rico did not by such action become
part of the United States, ii did be-
come such al least when Congress passed
the Foraker act. cannot believe that
Congress may impose any duty, impost,
or excise with respect to that Territory
and It's people which is not consistent With
the constitutional requirement that all
duties, imposts, and excises shall be uni
form throughout the United States"
THE DE LIMA CASE.
The De Lima case said Nj Justice
Brown, raised the single question wheth-
er territory acquired by the United States
by ccssion from a foreign Power remains
foreign country" within the meaning
of the tariff laws After dlsposing of the
technical law questions raised in the low
er courts and stating that the action was
properly brought, the opinion proceeded |
to discuss the point at issue, viz, that
Porto Rico was a foreign country This
was defined by Chief Justice Marshall
and Justice Story in several cases to be !
'one exclusively within the sovereignty /
OF foreign country and without the SOW
ereignty of the United States"
The status Of Porto Rico was this" |
said the court. The island had been for /
some months under military occupation /
by the United States as conquered coun- |
try, when, by the second article of the !
Treaty of Peace between the United /
stats and Spain, signed December TO-, |
1898, and ratified April II, 1898, Spain ced- !
ed to the United States the island of Porto |
Rico, which has ever since remained In I
our possession, and has been governed |
and administered by us II the ease de- /
pended solely upon these facts and the |
question were broadly presented whether |
a country which had been ceded to us.
the cession accepted, possession deliver !
ed, and the island occupied and admins |
tered without interference by Spain or /
any other Power, was a foreign country |
ar domestic territory, ii would seem that |
there could be as little hesitation |
in answering this question as there would |
be IN determining the ownership of a /
mousse decided in fee simple to a. purchaser |
who had accepted the deed gone into pos /
session, paid taxes, and made improve !
ments without let or hindrance from his |
vendor But II is earnestly insisted by |
the Government that II never could have |
been the intention OF Congress TO admit |
Porto Rico into a customs union with the |
United States, and that, while the island |
may be to q certain extent domestic ter |
ritory, II still remains foreign country |
under the tariff laws, until Congress has |
ii within the general revenue |
system"
Considering this contention the opinion
reviewed the decisions in the United |
States vs.. Rice, q suit for duties upon |
goods imported into Castine, Me. while II |
was temporarily occupied by the English |
in the war Of 1872. holding that the SOW
erelgnty Of the United States was sus-
pended by reason of the military occupa-
tion by the enemy; of Fleming VS. Page, a
suit Tor duties on goods imported from |
Iampico, Mex, TO the United States dur
ins temporary military occupation of
that place by the United States, holding
that despite such occupation Tampico had !
not ceased to be a foreign country in the |
sense Of the acts of Congress, and of
Cross vs.. Harrison, suit to recover mon
eys paid upon merchandise imported |
from foreign countries into California be
tween the date OF the Treaty of Peace |
with Mexico and that upon which the col
lectOr appointed by the President took his |
office, holding that from the necessities
Of the case the military government es-
tablished in California did not cease to |
exist with the Treaty of Peace but con |
ttnued as a government dc faCtO until |