Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1901-05-28

question ut issue in this case, he said
was whether the provision Of the Con-
stitution giving Congress power to lay
duties, imports and excuses. but requir-
Ing that they should be uniform
throughout the United Statcs'' had
been violated by the Foraker act inn
posing duties on goods coming from
Porto Rico into the United States.
There never could be any serious
question that when the government OF
the United States exercises an author
ity which the Constitution confers that
the applicable limitations OF the Con-
stitution controls it. Whilst this was
true universally. in every case the
question was not whether the consu-
tuition followed the flag, but. granting
that 1t did so. what provision was APP
plicable to particular cases.
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?
Justice White affirmed that the rule
of international law was that the re-
lation which an acquired country would
bear to the acquiring country in the
absence OF treaty stipulations was to
be determined by that country con-
formally to its institutions. The Unit
ed States POSSESS the same powers on
this subject as any other nation. An
acknowledgment Of our right 10 ac-
quire territory, coupled with o conten-
ton that when acquired the territory
was absolutely and Internationally III
corporated into the United States, he
said. was to admit the power to at-
quirc and Immediately to deny its
beneficial existence.
TO hold that the treaty making pow
or cannot Insert conditions in acuuir-
Ing would deprive that power OF nee
cssary attribute and would confer up
on il the authority to destroy the gov
eminent Of the United States.
II millions OF inhabitants % alien ter
ritory If acquired by treaty, can, with
out the desire or consent OF the people
OF the United States. speaking through
Congress. he Immediately and irrcvot-
ably incorporated into the United
States, the whole structure Of the gov
eminent can be overthrow. He could
not assent that the safeguards. priNl-
leges. rights and immuuitieso of the CON
stitution are SO cph.rlcral that they
could be destroyed by mere act Of
sale.
1t IL. then. ns think. Individually
settled by the principles OF the law ~
nations. by the nature ~ the govern
ment treated under the Constitution
by the express and implied powers con
ferred upon that government by th"
Constitution by tine mode In which
those powers have been executed from
the beginning and by an unbroken line
OF decisions OF this court. that the
treaty making power cannot incorp0r-
ate territory into thc United states
without the express W implied assent
OF Congress that il may insert In
treaty conditions against inmcci1t c
Incorporation.
The result Of what has been said
~ that whilst IN an international sense
Porto Rico was not "A foreign count ~
f. was FOREIGN to the United States In
4 domestic scnge because the island
had not been Incorporated into the
United States tut was merely appur;c-
rant thereto az a possession. As
necessary consequence the impost in
question assessed on merchandise com
ing from Porto Rico into the United
s;tnf-- after ~" cessation. WAS within
ti,c power ~ Congress and that body
was not. moreover. as to such imp'S st.
controlled Ivy the clause requiring that
i.,posts should DO uniform throughout
the United States, III other words. the
provision uf the constitution just re-
fcrred to was not applicable to Con
Ercts fl icgisiatinr for Porto Rico"
In concluding. it was said that tie
question when Porto Rico was to he
inCo, pOratcd was 4 political question.
To be determined by the American poo
pIc sneakiuE through Congress and
WIS not for tn" courts to determine.
JuSticc Cray announced his concrr-
rcncc In tho ma iority's conclusion IN
the EowncS case and in doing 50. sal !:
Tho t;yil government Of the United
st1tcs cannot c-tcnd Immediately and
cf It's own force over territory acquired
IL WY. Such territory mast neccs-
sarily. in the first instance. be govern
cd by the military power under the
control OF the Prceiden: as command r
in chief. civil government cannot take
effect rs soon as possession is asquircd
=
soon as that possession is confirmed
by treaty. 1t can he put in operation
only ~ the action OF the appropriate
political department Of the govern
ment. at such time and in such degr' g
as that department may determine.
There must Of necessity be transition
period
So long as Congress has not inCo-
poratcd tho territory into the United
States. neither military occupation nor
cCeeion hv treaty makes the conquered
= ri'urv domestic territory in the
-c,sc of the revenue laws. But those
l,wS concerning foreign countries"
~ apnliCaIlc to the conquered
territory until changed by Congress.
" Congress is not ready to construct
Il complete government Of the conquer
ed territory il may establish temper
ary government which is not subject
to all the restrictions of the constitu-
ton.
Such was the effect of the act of
Congress of April l.. 1900. entitled An
Act Temporarily to Provide Revenues
and 4 Civil Government for Porto
Rico and for Other Purposes"
The chief dissenting opinion in the
Downes case was announced by Chief
Justice Fuller. Justices Harlan. Erew-
er. and Pcckham joining in the di~Scnt