New-York tribune., 1901-05-28
DISSENT IN DE LIMA CASE
JUSTICES MKENNA SHIRAs WHITE AND
GRAY COMBAT THE MAJORITY VIEW.

Washington. May 2z-Justice McKenna read a
dissenting opinion in the De Lima case. saying
that Justices Shiras and White Joined in his views
The majority, he said, proceeded on the simple
proposition that TO settle whether Porto Rico is
foreign country" domestic territory is to
settle the controversy in litigation in the particu-
lar case. But in his view il could turn on so
easy a definition. Between the extremes there
other relations which Porto Rico might sus-
tain the United States. and il could be demon
strated that Porto Rico occupied one of these
other relations. and its products hence, We're sub
ject to duties. The history Of the country. said
Justice Mckenna. has examples Of the acquisition
Of foreign territory-eXamples Of what relation
such territory bears the United States-authori-
ties, executive. legislative and judicial. what
was wise in craftsmanship well what
legal and constitutional Withholding or extend
ing our laws to such territory: and finding these
examples and authorities in the way the opinion OF
the court attempts to answer distinguish
overrule them.
LAWS NOT EXTENDED BY CESSION.
Distinctions, he contended. always had been rec
osnized between territory acquired and that which
vas within the acknowledged limits of the United
States. In American Insurance Company agt. Can
ter, Justice Johnson. in speaking Of the acquisition
Of Florida. said that the had explicit
proof that the understanding Of our public func-
tonaries is that the government and laws OF the
United States do not extend TO such territory by
the mere act Of cession-' These were the utter
ances Of men who had made the constitution pos
sibe ard had conceived and written it Was II 10
be said that understand what they had written
better than they themselves? Justice McKenna
then called attention TO the fact that after Califor
MAS annexation our customs laws had been
tended over il. and asked why was this necessary
troyered other historical pTeoedents cited by the
sertfng that without precedent il Would be rresst-
~ lgy lnIPelied 10 the conclusion that by cession
an automatic force contrary to its terms or greater
1han them. Whether Porto Rico was a foreign
country within the meaning Of the revenue laws
BY the mere OF acquisition Of foreign country
rues Of the government such a law regarded Ger
tain conditions whether It be enacted for revenue
may be impaired or be destroyed by change in
any part The revenues of the government may be
lessened, even taken away, by change the indus
trial policy Of the country may be DESTROYED by
leads TO such consequences, whether regarding our
own country the foreign country made do
TO set the word foreign in antithesis to the
narroweT It is whether a particular tariff law
r-. -rinctnia that AN laws amply or that customs
& apply by reason Of the provision Of the con
..-es to be Uniform throughout the United states.
nj the treaty-rnaking power cannot prevent the
arrllcation Of that provision
WOULD CRIPPLE THE NATION.
THAT principle is asserted by counsel and is very
simple. but applied counsel apply ii is fraught
with grave consequences. II takes this great coun
Try out Of the world and shuts il up within itself
peace. 1t may take away the fruits Of victory
and if we may contemplate the possibility Of dis
aster, IL may take away the means OF mitigating
that.
The treaty-maklng power is as much constitu-
tiOnal power the legislative or judicial powers.
II is supreme attribute Of sovereignty. 1t may
precede war or follow war There can be no verbal
limitations upon its exercise. and wisely none were
attempted Whatever restraints should be put upon
Il might have to yield the greater restraints OF
life death-not only material prosperity. but ma
tona existence These. Of course. are extreme con
tngencies, but they are not Impossible, and are
necessary to be regarded when limitations are
urged which take no account of them. We do not
mean TO say that there are no limitations Ihey
certainly those which counsel urge.
IN conclusion Justice McKenna sdld the colslo J.
erations TO his mind suggested the difficulties OF
arv such general and sweeping view as had been
laid down by majority. II correct. neither We
nor the CONQUERED nation would have any choice In
new situation-we would stand bound In a
hepless fatality. The whole matter. therefore he
thought was essentially legislative and not judicial
Justice Cray announced that he likewise dls-
sented from the ma jority opinion, saying briefly
that its judgment appeared 10 him irreconciabie
with ne Unanimous opinion Of this court In tlern-
ing vs. Page and with the opinions OF the majority
Of justices in the case to-day decldeo OF Dowhes