The Saint Paul globe. (St. Paul, Minn.) 1896-1905, 1901-05-28
CONCUR IN OPINION,
DIFFER ON PREMISES
White, Shiras and McKenna Hold
People, Through Congress, De-
termine Status of Ac-
qufred Territory

Following Justice Browns opinion In
the Downes' case, Justice White deliver
ed an opinion in which he said Justice
Sr1ras and McKenna united concurring
in the decree affirming the judgment Of
the Downes case, but placing 1t on
grounds which he said were not only diff
ferent FROM but in conflict with those
expressed by Justice Brown The ques-
ton at issue in this case, he said, whether
the provision Of the constitution giving
congress power to lay duties, imposts
and excuses, but requiring that they
should be uniform throughout the Unit
ed States had been violated by the Fora
ker act imposing duties on goods COM
ing from Porto Rico into the United
States. The proposition deliberately
argued at the trial that the government
of the United States being created by
the constitution, that instrument where
1t limits the power of the government
does SC everywhere where it's authority
Is eXerted, were conceded There could
never be any serious question that where
the government Of the United States
exercises authority which the constitution
confers that the applicable limits Of the
constitution controls it. Whilst this
was true, universally in every case the
question was not whether the constitution
followed the flag, but granting that it
did so, what provision was applicable to
particular cases. The cases which it was
said were an exception were certain
general limitations in the constitution In
favor Of liberty and property, which
Withdrew all power from congress. Such
limitations We're everywhere applicable,
and of course could never be transgres-
sed. In view of this the opinion went
on, there is in reason, then, no room
IN this case to contend that congress can
destroy the liberties of the people of
Porto Rico by exercising in their regard
powers against freedom and justice which
the constitution has absolutely denied"
The sole and only issue is, had Porto
Rico, at the time of the passage Of the
action in uestion been Incorporated into
and become an integral part Of the
United States?
Considering this question Justice White
affirmed tnat the rule of international law
was that the relation which an acquired
country would bear to the acquiring
country in the absence ot treaty stipu-
lations was to be determined bv that
country confOrmably with it's institutions
The United States possessed the same
powers on this subject as any other
nation
Justice White then went eXhaustively
into the history of the United States ana
of it's acquired territories in support of
beginning had manifested that this power
was possessed by the United States An
acknowledgment of our right to acquire
territory, coupled with a contention that
when acquired the territory was abso-
lutely and Internationally incorporated
into the United States, he said was to
admit the power to acquire and imme-
diately to deny its beneficial existence. To
hold that the treaty making power can
rot i,,co
deprive that power of a necessary attrl-
butte, and would confer upon 1t the au-
thority to destroy the governmen MT Of the
United States. If millions of inhabitants
of alien territory, If acquired by eaty,
can, without the desire or consent of
the people of the United States. speaking
through congress, be Immediately and ir-
revocably incorporated into the United
States, the whole structure of the gov
eminent can be overthrown. While thus
aggrandizing the treaty making power
on the one hand, the construction at the
same time minimizes it on the other in
that 1t strips that authority of any right
to acquire territory upon any condition
which would guard the people Of the
United States from the evil of imme-
date corporation. What also becomes of
the popular branch of congress. which
though it might be unwilling to
agree 10 the incorporation of
alien races, 1t would be impotent to pre-
vent its accomplishment To meet the
evil effect Of this view, its advocates
claimed that all citizenship of the United
States is precarious and fleeing ana sub
ject to be sold at any moment like prop
erty. He could not assent that the safe
guards, privileges, rights and immun:ties
of the constitution are so ephemeral that
they could be destroyed by mere act
of sale Our forefathers believed there
was no power to dispose Of sovereignty
over foot Of American territory and
all territory Incorporated into The Unit
ed States was taken under a pledge that
it should forever be a part Of the United
States. He cited the Louisiana purchase
and other instances where considerable
time elapsed prior to Incorporation, and
summarized his views as follows:
POWER OF CONGRESS.
ut is, then, as I think, Individually
settled by the principles of the law Of
nations, by the nature Of the govern
ment created under the constitution. by
the express and implied powers conferred
upon that government by the constitu-
ton, by the mode in which these powers
have been executed from the beginning,