The times., 1901-05-28

fundamental conceptions which lay at
the basis OF all free government would
control Congress in so ieGislatiug. Citing
instances showing the applicability of the
Constitution to different conditions, JUS
tice White said that although Federal
judges were obliged by the Constitution
to have a life tenure such provision had
been decided not TO be applicable in the
Territories, because of the temporary ma
ture of their judicial system. On the
other hand. the provisions as to juries had
| been held to be applicable in the incorpo-
rated Territories, and yet again the jury
provisions had been decided not to be
applicable to consular courts of the Unit
ed States sitting in certain foreign coin-
tries as provided by treaties
There is in reason them said the jus
| tice. 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 abso-
| lutely denied. There can also be no con-
troversy as to the right Of Congress to
locally govern the island of Porto Rico
as its wisdom may decide and in so doing
to accord only such degree OF represen-
tative government as may be determined
on by that body There can also be no
contention as to the authority of Congress
to levy such local taxes In Porto Rico
as II may choose, even although the
amount of the local burden so levied be
! manifold more onerous than is the duty
with which this case is concerned. But
as the duty in question was not a local
| tax, since it was levied in the United
States on goods coming from Porto Rico.
Il follows that If that island was a part
of the United States the duty was re-
pugnant to the Constitution. since the
authority 10 levy an impost duty con-
ferrsd by the Constitution on Congress.
does not. as I have conceded include the
right To lay such a burden on goods com
ing from one TO another part OF the Unit
cd States. And. besides. II Porto Rico
Was part OF the United States the exac-
/ tlon was repugnaHt to the uniformity
clause
The sole and only Issue, then. Is not
whether Congress has taxed Porto Rico
without TepresentatiOH--f0r whether the
tax WIS local or natioEal. IL could have
been Imposed. although Porto Rico had
no representative local government and
WAS not represented IN cOrgress-but ia
whether the particular tax IN question
was levied In sBch form ~ - cause 4 20
be repugHant % the Constitution. 'fals
Is to be resolved by Answering ths en-
uuify, Had Porto Rico ~ the t1Dle u
the passage 0f the act IL question. beer
Incorporated intO ard become an integral
part OF the United States2
THE ACQUISITION or TERRITORY.
II was affirmed that the general pr1n-
ciole OF international law was that
country. sovereign within the limits OF
it's powers had tha right 70 acquire terri
tory by discovery, by agreement. and BY
conquest. and that the general rule also
was that when a country was acquired by
either of these methods the relation which
ii would bear TO the acquiring country in
the absence of treaty stipulations. was to
be determined by that country conforna-
bly, to it's Institutions. Many interna-
tional law writers and decisions are re-
ferred to as sustaining the theory. 1t
was then said that the history of the
United States from the beginning had
manifested that this power was pos
sessed by the United States. In this con-
rEc Ia cited the extern
sion OF the territory of the United States
since the adoption of the Constitution by
every form of acquisition known to the
laws of nations. Title to Oregon was
founded upon original discovery and set
tIement; Louisiana was ceded by France;
Florida transferred by Spain; Texas was
admitted by Congress- California ana
New Mexico by treaty with Mexico; AIaS-
ka was ceded by Russia; and Hawaii, the
Guano Islands, Tutuila, and other ISL
ands were acquired by various means. IL
was Insisted. however. conceding the right
of the Government TO acquire territory,
as all such territory when acquired De
came incorporated into the United states,
every provision of the Constitution which
would apply under the situation was
controlling in such acquired territory.
This however, was but to admit the pow
er to acquire and Immediately to deny its
beneficial existence. While the treaty
making power might acquire 1t, 1t could
not Justice White insisted, incorporate
territory into the United States without
the consent of Congress, expressed or I'M
pIied To adopt the taPory that the
treatv-making power cFuld not insert
conditions in acquiring would deprive that
power Of a necessary attribute ana "ouIu
besides confer upon 1t the authorlty 70
destroy the Government of the United
States.
CONSENT OF THE GOVERNED.
eff the treaty-making power" the opin-
ion continued. ''can absolutely, without
the consent of Congress. incorporate ter
ritory. and if that power may not insert
conditions against Incorporation, 1t must
follow that the treaty-making power is
endowed by the Constitution with the
most unlimited right. susceptible OF de-
stroyfng every other provision of the Con-
stitution: that is. it may wreck our IN
stitutions. If the proposition be true,
then millions of inhabitants of alien ter
ritory. if acquired by treaty, can. without
the desire or consent OF the people OF the
United States speaking through Congress,
be Immediately and irrevocably incor-
porated into the United States, and the
whole structure of the Government be
overthrown While thus aggrandizing the
treaty-making power on the one mana,
the construction at the same time mini
mizes 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 immediate Incorporation
The treaty making power then, under TINS
contention, instead OF having the sym
metrical functions which belong TO 1t
from its very nature becomes distorted
vested with the right TO destroy upon the
one hand and deprived of all power to
protect the Government on the other.
THE effect of the principle asserted was
equally antagoniStic not only TO the eX-
press provisions but 10 the spirit OF the
Constitution in other respects Thus, II
il be true that the eaty-maktnS power
had the authority which was asserted.
which was peculiarly the representative
of the people of the United States, and
what was left of the functions of that
body under the Constitution? For, al
though the House of Representatives
might be unwilling to agree to the in
corporation Of alien races, II would be
impotent to prevent its accomplishment,
and the express provisions conferrinS
upon Congress the power to regulate com
merce the right TO raise revenue-ollls
for which, by the Constitution, must orig
mate in the House of Representative
and the authority to prescribe uniform
naturalization laws would be in effect set
at naught by the treaty-making power
And the consequent neutrality-suspicious.
would be beyond all future control OF or
remedy by the American people, since.
at once and without hope of redress or
power of change. Incorporation by the
treaty would have been brought about
The inconsistency of the position was at
once manifest. The basis OF the argument
was that the treaty must be considered to
have incorporated, because acquisition
pre-sIlpposed the exercise of Judgment as
to fitness for immediate incorporation.
But the deduction drawn was, although
the Judgment exercised was against i'm
mediate incorporation and this result was
plainly expressed, the conditions are void
because no Judgment against incorpora-
tfon can be called into play