The times., 1901-05-28

out its obligations looking to the protec-
uon OF. OF hie s and property and safeguarding
in the very treaty under which the terri
tory was acquired. In other words. this
must follow: N the United States. under
the Constitution. when acquiring by
treaty must acquire unconditionaiiy. IL
must dispose of such territory II at all.
Jnconditionaly.
THE UNITED STATES.
Coming to determine what constituted
incorporation. Justice White pointed out
that all the land within the boundaries Of
the United States. as hxed by the treaty
of peace with England which ended the
Revolutionary war. was a part of the
States: that the Territories which vera
subsequently, formed by the cessions from
the States were covered with a pledge
that they should forever be part of the
United States, and thus the United States
was composed Of one people. enjoying
citizenship. with common guarantees for
lie. liberty, and property, although diff
fering somewhat in their political rights
dependent upon whether they lived In a
State or Territory. and this political
entity constituted the United States
Justice White referred to previous DE-
cisions OF the court establishing the rule
that Incorporation. as a consequence Of
treaty, could not arise without the ex-
press or Implied assent or Congress
speaking for the American people and
said that to hold the contrary would be
TO admit that the birthright Of American
citizens was subject to be divided at
any time without their consent by bring
ing in millions Of aliens through the action
Of the treaty-msalking power;
In conclusion Mr.. Justice White sums ur
the case as follows:
I'm what has preceded I have in effect
considered every substantial proposition
and have either conceded or reviewed ev-
cry authority referred to as establishing
that immediate Incorporation resulted
from the treaty of cession which is under
consideration. Indeed the whole argu-
ment In favor of the view that immediate
incorporation followed upon the ratifica-
tion Of the treaty in it's last analysis nee
essarily comes to this: Since ii has been
decided that incorporation flows from a
treaty which provides for that result.
when itA provisions have been expressly
of ifapl5ediy approved by Congress. 1t
il31St iollg@ that the same effect flows
tH2sn treaty which expressly stipulates
% Tie contrary even although the condi-
ti0n 80 that end has been approved by
Congress. That Is TO say the argument
IS this. tseauss provision fer incorpOra-
ton when rstfheo incorporates. therefore
a provision against Incorporation must
also produce the very consequence which
II expressly provides against
FOREIGN n A DOMESTIC SENSE.
''The result Of what has been said is
that whilst in an international sense
Porto Rico was not a foreign country.
Slice II was SUBJECT 10 the sovereignty OF
and was owned by the United States. it
was foreign to the United States 10 do
mestic sense. because the island had not
been incorporated into the United States.
but was merely appurtenant thereto as a
possession As a necessary consequence.
the impOst In question assessed on mer-
chdndise coming from Porto Rico into the
United States after the cesslon was WITH
in the power Of Congress, and that body
moreover
controlled 5y the clause requiring that
imposts should be uniform throughout the
United States; in other words, the pro-
vision of the Constitution Just referred 70
was not applicable to Congress IN leSls-
latiEg for Porto Rico.
BY Mr.. JUSTICE WHITE.
Concurring in the Judgment Of the court
and in substance agreeing with Justice
Whites opinion. Justice Gray said:
THE civil government of the United
States cannot extend Immediately, and
of its own force, over territory acquitted
by war Such territory must necessarily,
in the first instance. be governed by the
military power under the control of the
President, as Commander-in-Chief. Civil
government cannot take effect at once,
as soon as possession is acquired under
military authority. or even as soon as
that possession is confirmed by treaty.
tion of the appropriate political depart
ment of the Government, at such tine AID
In such degree as that department may
determine. There must, of necessity, be a
transition period.
I'm conquered territory, civil govern
ment must take effect, either by the ac-
tion of the treaty-making power, or by
that of the Congress of the United States.
The Office OF a treaty OF ceSSiOn ordinarily
is to put an end to all authority of the
foreign Government over the territory;
and to subject the territory to the dlSpO-
sitiOn of the Government of the United
States The government and disposition
of territory so acquired belong TO the Gov
ernment of the United States, consisting
of the President, the Senate, elected by
the States, and the House of Representa-
tives, chosen by and Immediately repre-
Senting the people OF the United States.
Treaties by which territory is acquired
from a foreign State usually recognizes
this Ii is clearly recognized in the re-
cent treaty with Spain. especially in the
ninth article, by which The civil rights
and political status OF the native inhabi-
tants of the territories hereby ceded to
the United States shall be determined by
the Congress.
BY the fourth and thirteenth articles
of the treaty the United States agree that,
for ten years. Spanish ships and merchan-
disc shall be admitted 10 the ports OF the
Philippine Islands on the same terms as
ships and merchandise of the United
States, and Spanish scientific. literary,
lie order. shall continue TO be admitted
free of duty into all the ceded territories.
Neither of these provisions could be
carried out if the Constitution required
the customs regulations of the United
States to apply in those territories.
In the absence of Congressional legiSla-
tion, the regulation of the revenue of the
conquered territory, even after the treaty
of cession. remains with the executive and
military authorities.
so long as Congress has not fncorpOr-
ated the territory into the United States
neither military occupation nor cession by
treaty makes the conquered territory do
nestle territory in the sense of the reve-
nue. laws. But those laws concerning
foreign countries remain applicable to
the conquered territory until changed by
Congress Such was the unanimous Opin-
ion of this court. as declared by CHIEF
Justice fancy. in Fleming VS.. Page .
Howard. 603-6l7
If Congress is not ready to construct
a complete government of the conquered
territory, 1t may establish a temporary
government, which is not subject to all
the restrictions of the Constitution
Such was the effect of the act of Con-
Sress OF April II, 1900. entitled An act
temporarily to provide revenues and a
civil government for Porto Rico and for
temporarily established by that act dur
ing the transition period, was WITHIN the
authority OF congress under the COnsti-
tuition of the United States
THE DISSENTING OPINIONS.
Dissenting opinions were rea BY Chief
Justice Fuller and Mr. justice. Harlan.
the former speaking for the two named.
and Justices Brewer and Peckham as
Well
The majority" said the Chief Justice.