The times. [volume] (Washington [D.C.]) 1897-1901, 1901-01-16


the date of the annexation resolution,
August Z, 1898. and the taking effect of
the act establishing a government for
Hawaii, June Is, 1900.
w. Wickham Smith, OF counsel for
Crossman & Co.. continued his argument
upon the appeal of his clients from
the judgment of the Circuit Court
for the Southern district of New
York, that Crossman G. Co. must pay du-
ties on importations into New York, of
whisky, brandy. and jam from the Ha-
waiian Islands. under the provision of the
resolution of annexation which continues in
force until Congress shall otherwise legis-
sate on the tariff relations between Ha-
waii and the United States and all other
countries.
He laid down the following propositions,
upon which, he said. his clients rely:
1. At the time of the Importation of
these goods the Hawaiian Islands, having
been by the action of Congress. approved
by the President, annexed as a part OF
the territory of the United States, were
not foreign country within any sense of
that term. and certainly not within the
sense of that term as used in the enact
ing clause of the Dingley tariff act
< The action of Congress in providing in
the joint resolution of annexation that the
customs relations Of the Hawaiian Islands
with the United States and with other
countries should remain unchanged until
congress should further legislate on the
subject was a violation of the provision of
tne Constitution that '.aIl duties. imports
and excuses shall be Uniform throughout
the United States''
g. as such joint resolution provided for
the collection at the ports of the Hawaiian
Isiands OF duties upon articles sent thither
from other ports Of the United States this
was. IN effect. a violation of the provision
OF section Of the Constitution that mo
TAX or duty shall be laid on articles ex
ported from any State,
Mr. Smith said in part:
II would be strange view of language
70 nolo that the words throughout the
United StateB in Article l. section were
narrowed or more limited in their scope
tnan the words in the United States in
the Fourteenth Amendment There is no
principle of grammar, logic, law. or com
mon sense on which the words through
out the United States in the uniformity
clause, with regard TO taxation. can be
restricted TO the States, excluding the
Territories
"A long line of decisions by this court
that certain fundamental limitations upon
the power of Congress contained in the
Constitution are in force in various Terri
tories OF the United States, are disposed
OF by those on the other side of this con-
troversy by the statement that the Con-
stitution operates in these Territories be-
cause Congress has seen fit to extend it
TO them by its own act. In other words.
they advance the doctrine that the Con-
6tAstion has no force or operation in any
territory until Congress puts it there.
and. OF course. this logically implies that
1t only extends there to the extent to
which Congress puts It there. and can re-
main there only SO long as Congress
chooses to permit In other words those
who hold that Congress puts the Consti-
tuition into the Territories cannot escape
from maintaining that Congress has pow
er at any time TO take the Constitution
out OF the Territories. II the Constitu-
ton operates today in Arizona New Mex
leo. and Oklahoma only because Congress
has chosen to extend II to those Terrific
ries. Ii must be within the power of Con-
gress tomorrow to enact that the Consti-
tuition shall no longer be operative in any
OF its parts in these Territories. Indeed.
IL is a question whether Congress would
need to go through that form. special
subsequent statute repugnant to a prior
general statute obviously re-repeals the
latter 1.-THE Cherokee tobacco case. II
Wall, $50, and, therefore, according TO
those who are opposed 10 US in this case,
Congress must have a right tomorrow TO
create an order of nobility in Oklahoma
or to pass a bill of attainder in Arizona"
In conclusion Mr.. Smith said:
May Congress in legislating for terri
tory which II has annexed as part of the
territory of the United States disregard
the fundamental limitations upon its
power written in the organic laws to
which Congress owes its existence? If it
may. the judgment below is correct. If
it may not, that judgment cannot stand"
Solicitor General Richards appeared for
the Government. There could not be Z
case. he said, which more clearly illus
trated that absurdity of the broad conten-
ton of opposing counsel In the pending
cases-the contention that Immediately
upon acquisition, by whatever means en-
pioyed, of any territory IL became an in
tegral part OF the United States. subject
10 the limitations of the Constitution re-
specting the laying of taxes
AT the date Of the annexation resolution
July Z, 1928. Mr.. Richards said, there were
no laws OF the United States in force
there, nor any agents or officers OF the
United States there to execute the laws
had they been there. And yet the con-
tentiOn was that Immediately upon the ap-
proyal of the resolution OF annexation the
Government and laws Of the Hawaiian
RtpuDilc were wiped cut OF existence.
The logical result of this, he said was
THAT Hawaii would be thrown open TO the
trade OF the world and through Ii .he ports
OF the United States opened to the goods
Of the world without the payment of a
cent of duty. Had that been the case he
asked, was ii possible that Congress would
have passed the resolution and accepted
the islands. II there had been no time
available IN which Congress aud the Pres
ident could prepare for the extension Of
the laws of the United States to them and
the organization OF a government for the
islands
The resolution OF annexation. Mr. Rich
ards said accepted the cession CT the ISL
ands with conditions enumerated and set
out al length. and the power Of the Cnifed
States TO acquire territory either by the
treaty-maklHg power or by the legislative
power could be exercised upon conditions
set out in the treaty or resolution of an
nexs ton. One of these conditions was that
complained Of by opposing counsel, declar-
ing that until Congress otherwise legis-
lates. the then present customs and com
m6rcial relations Of the Hawaiian Repuh-
lie with the United States and other for
elgn countries shall continue in force.
Answering Mr.. Smiths contention that
the words in the Thirteenth Amendment
''or any Territory subject TO their iuris-
diction" were put there in order TO settle
that slavery should not exist in the State
that had been in rebellion, Mr. Richards
said he could not agree with that view
The words themselves showed that they
were intended to apply not only to the
States, but TO all the territory everywhere
subject 10 their Jurisdiction. The Solicit
nroI aotA rail-