New-York tribune., 1901-05-28
OTHER JUSTICES VIEWS.
UIHEK JINIIJES NIENS.
on DIFFERENT GROUNDS.


CoNcURRING WITH JUSTICE BROWN. BUT
ON DIFFERENT GROUNDS.
Washington. May 2I.-Following Justice
Browns opinion in the Downes case. Justice
White delivered opinion, in which he said
that Justices Shiras and McKenna united, con-
curing in the decree affirming the judgment in
the Downes case, but placing it grounds
which, he said were not only different from. but
in conflict with, those expressed by Justice
Brown. The question at issue in this case. he
said. whether the provision of the con-
stitution giving Congress power to lay duties.
imposts and excises but requiring that they
should be uniform throughout the United
States" had been violated by the Foraker act.
imposing duties on goods coming from Porto
Rico into the United States. The propositions
elaborately argued at the trial that. the Gov
ernment OF the United States being created by
the constitution, that instrument where it linn
| its the power of the government. does so every
where, wherever its authority is eXerted, We're
conceded.
There never could be any serious question
that when the government of the United States
exercises authority which the constitution
confers the applicable limitations Of the con-
stitution control it, While this was true uni
versally, in ever the question not
whether the constitution followed the flag. but
granting that it did So what provision was ap-
plicable 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 were everywhere
applicable and. OF course. could never be trans
ferred. In view of this, the opinion went on
''there is reason. then in this
case, to contend that Congress can destroy
the liberties of the people of Porto Rico by
exercising I'm their regard powers against
freedom and Justice which the constitution
hns absolutely denied" The sole and only is
sue is. Had Porto Rico. at the time of the pas
sage Of the act in question, been incorporated
into and become an integral part of the United
States?
POWERS OF THE UNITED STATES.
Considering this question, Justice White af
firmed that the rule of international law was
that the relation which an acquired country
would bear to the acquiring country in the alb
sence Of treaty stipulations was to be de-
termined by that country conformably to its in
stitutions. The United States possessed the
same powers on this subject as any other nation
Justice White then went exhaustiveIy into the
history OF the United States and Of its acquired
territory in support of his assertion that our
history from the beginning had manifested thar
this power was possessed by the United States
An acknowledgment of our right to acquire ter
ritory. coupled with contention that when ac
quired the territory absolutely and uncon-
ditionally incorporated into the United States
he said, was to admit the power to acquire and
Immediately to deny its beneficial existence
To hold that the treaty making power cannot
insert conditions in acquiring would deprive that
power Of a necessary attribute and would con-
fer upon IL the authority to destroy the gov
ernment of the United States. If millions of
inhabitants of alien territory, If acquired by
treaty, can, without the desire or consent of tbe
people of the United States speaking through
Congress. be Immediately and irrevocabIv in
corporated into the United States the whole
structure OF the government can be overthrown.
While thus aggrandzing the treatv MAKING
power on the one hand, the construction at tho
same time minimiZes it the other in that II
strips that authority of any right to acouire
territory upon any condition which would guard
the people of the United States from the evil of
immediate incorporation. What also becomes of
the popular branch of Congress- which. though
1t might be unwilling to agree to the incorpora
ton of alien races, would be irnpotent 70 nre
vent its accomplishment?
TO meet the evil effect of this view its advo
Gates claimed that all citizenship of the limited
states Is precarious and heeting and subject
10 pe soiu al any moment like property. He
could NOT assent that the safeguards, privileges,
rights and immunities OF the constitution are SO
ephemeral that they could be DESTROYED by a
mere act OF sale. Our forefathers believed there
was no power to dispose of sovereignty over a
loot or American territory. and all territory in
corporated into the United States was taken
under a pledge 1t should be forever a part of
the United States.
INCORPORATION OF TERRITORY
de cited the Louisiana Purchase and other
| instances where considerable time elapsed prior
TO incorporation, and summarized his views as
| follows:
IL is then, as l think, indubitably settled by
~. piHicipies OF the law of nations. by the
| nature OF the government created under the
constitution. by the express and implied powers