The Saint Paul globe. (St. Paul, Minn.) 1896-1905, 1901-05-28
DISSENTING OPINION.
FILED IN DE LIMA CASE
As Little Unanimity as to Islands
Status Prior to Passage of For
aI1er Act rs In DOwnes


Case
Justice NGcKenna read q dissenting
opinion in the De Lima case. stating that
Justices Shiras ard White joined in MS
views. The majority, he said, proceeded
on the simple proposition that to settle
whether Porto Rico is foreign country
or domestic territory" is to settle the
controversy in litigation in the particular
case. But in mis- view it could not turn
on so easy definition. Between the
extremes there We're other relations
which Porto Rico might sustain to the
United States end it could be demonstrate
ed that Porto Rico occupied one of these
other relations and it's products hence
We're subject to duties. The history of
our country, said Justice McKenna, mas
examples OF the acquisition of foreign
teri tory-examples of what relation such
territory bears to the United States au-
thorities, executive, legislative and jul
die al, as to what was wise in states
Tnanship as we'll as what was legal and
constitutional in Withholding or extending
our laws tc such territory; and finding
these examples and authorities in the
way the opinion of the court attempts
to answer or distinguish or overrule
them. He then cited the cases of the
United States VS.. Rice, and Fleming VS.
Page, referred to by the majority, and
SoliU the ldIiGT attempted TO reconcile
them and dismissed large part of Chief
Justice Taney's decision in the Page case
as dicta He thought both cases reconcil-
able and on the ground that both recog-
rfzed the inevitable conditions. Such
recognition made government provident
are not haphazard. It left to the ex-
eclitiVe and the legislative departments
that which pertains to them. The opin-
ions expressed in Fleming VS. Page that
In hon kei< ~.
be enlarged or restricted by the advance
or retreat of armies, and that whether
duties should be levied depended on CON
gress granting authority should be ac-
cepted as wise and considerable of the
different functions of the executive, legis-
latiVe and judicial departments and Of
their independence.
Why should it then be discarded as
dictum? If constancy Of judicial decis-
ion is necessary to regulate the relations
and property rights of individuals, is not
constancy Of decision the more necessary
when it may Influence or has influenced
the action of a ration? If the other
great departments Of the government
must look to the judicial for light that
light should burn steadily. 1t should not.
like the eXhalations of marsh, shine
to misead. Distinctions, he contended,
always had been recognized between ter
in the acknowledged limits of the United
States. In American Insurance COM
pany VS.. Canter, Justice Johnson, in
speaking Of the acquisition of Florida,
said that the court had most explicit
proof that the understanding of our
public functionaries is, that the gov
eminent and laws Of the United States
do not extend to sucn territory by the
mere act of cession." These were the
utterances of men who had made the
constitution possible and had conceived
and written it. Was it to be said that
we understand what they had written be-
ter than themselves? Justice NICK emma
then called attention to the fact that
after California's annexation our Gus
toms laws had been extended over it and
asked why was this necessary if they APP
piled eff their own force. lie also con-
troverted other historical precedents cit
ed by the majority and then attacked
the majority for asserting that without
precedent it would be irresistibly impeHed
TO the conclusion that by a cession Cf
territory, that territory automatically
became a part of us. The treaty, he
said could not have all automatic force
contrary to its terms or greater than
them. Whether Porto Rico was a foreign
country within the meaning Of the rev.
enue laws depended on the treaty.
eign country we did not endanger our
tariff system and the revenues Of the
government. Such law regarded GER
tain conditions whether 1t be enacted
for revenue only or for protection and
revenue. It's entire plan may be I'm
paired or be destroyed by change in any
part. The revenues of the government
may be lessened, even taken away by
change; the industrial policy of the coun-
try may be destroyed by change. We
are repealed by the argument which leads
to such consequences, whether regarding
our country or the foreign country made
domestic
ITO set the word foreign in antitnesis
to the word domestic proves nothing
The controversy is narrower. 1t is wheth-
er particular tariff law applies. That
indeed. may be the consequence of the
principle that all laws apply. Or that
customs laws apply by reason Of the
provision Of the constitution which re-
quires duties. imposts and excuses to be
uniform throughout the United States,
and the treaty-making power cannot pre-
vent the application of that provision.
THE principle is asserted by counsel,
and is very simple. but applied as coun-
sci apply it is fought with grave conse-
quences. 1t takes this great country out
of the world and shuts it up within itself
1t binds and cripples the power to make
war and peace. 1t may take away the
JruuS OF victory, ana, II We may con-
template the possibility of disaster. it
may take away the means of mitigating
that.
"The treaty-Tnaking power is as much
a constitutional power as the legislative
or judicial powers. 1t is a supreme at
tribute of sovereignty. 1t may precede
or follow war. There can be no verbal
limitations upon it's exercise and, wisely,
none were attempted. Whatever re-
straints should be put upon it might have
to yield to the greater restraints of life or
death-not only material prosperity, but
national existence. These of course are
extreme contingencies, but they are not
garded when limitations are urged wfttcn
take no account of them. We do not
mean to say that there are no limitations
They are certainly not those which coun-
sci urge"
In conclusion, Justice McKenna said
these considerations to his mind sug-
gested the difficulties of any such gem
eral and sweeping view as had been laid
down by the majority. If correct, neither
we nor-the conquered nation would have
any choice in the new situation-we
would stand bound in a helpless fatality
The whole matter therefore. he thought.
was essentially legislative and not 1udl-
cial
Justice Gray announced that he like
wise dissented from the majority opinion,
saying briefly that its Judgment appeared
to him irreconcilable with the unanimous
opinion of this court in Fleming VS. Page
and with the opinions of the majority of
the justices in the case today decided of
Downes vs. Bidwen.
TSa7rD sarTYTSD CAC51c ann