The times., 1901-05-28

NEW CONDITIONS To BE MET.
I'm passing upon the questions involved
in this and kindred cases we ought not to
overlook the fact that while the Constitu-
tion was intended to establish perma-
nent form of government for the States
which should elect to take advantage of
Its conditions. and continue for an indef-
mite future, the vast possibilities of that
future could never have entered the minds
of its trainers. The States had but re-
Gently emerged from a war with one of
the most powerful nations of Europe;
were disheartened by the failure of the
confederacy. and were doubtful as to the
feasibility of a stronger union. Their ter
ritory was confined TO d narrow strip of
land on the Atlantic Coast from Canada
to Florida, with somewhat indefipite
claim to territory beyond the Alleghenies,
where their sovereignty was disputed by
tribes of hostile Indians supported, as
was popularity believed, by the British,
who had never formally delivered posses
sion under the Treaty of Peace The vast
territory beyond the Mississippi, which
formerly had been claimed by France.
since 1852 had belonged to Spain; still
powerful nation, and the owner of a great
part of the Western Hemisphere. Under
these circumstances il is little Wonder
that the question OF anneNing these terri
tories was not made a subject of debate
The difficulties of bringing about a union
of States was so great the objections 10
IT seemed so IOr1niddDIes lh3l the Nioi'
thought of the convention centred upon
surmountng these obstacles. The ques-
ton of Territories was dismissed with q
single clause, apparently appilcapie onIy
to the Territories then existing, giving
Congress the power to govern ana dispose
of them
OUR GROWTH NOT FoREsEES.
Had the acquisition Of other terrific
ries been contemplated as a possibility.
could it have been foreseen that. within
little more than one hundred years, we
were destined to oacquire not only the whole
vast region between the Atlantic ana PA
cidc Oceans but the Russian possessions
in America and distant islands In the
Pacific. it is incredible that no provision
should have been made for them. and the
question whether the Constitution should
or should not extend to them have been
definitely settled. II it be once conceded
that we are at liberty TO acquire foreign
territory. a presumption arises that our
power with respect to such territories IL
the same power which other nations have
been accustomed to exercise with respect
to territories acquired by them.
If in limiting the power which Con-
gress was to exercise within the United
States. it was also intended to limit It
with regard to such territories as the peo-
pie of the United States should thereafter
acquire, such limitations should nave Deen
expressed. Instead of that. we IND the
Constitution speaking only to states, ex-
cept in the Territorial clause. which is
absolute in its terms, and suggestive OF
no limitations upon the power OF Congress
in dealing with them. The States could
only delegate to Congress such powers
as they themselves possessed, ana as
they had power to acquire new terri
tory they had none to delegate IN that
connection The logical inference from
this is. that If Congress had power to
acquire new territory, which is conceded
that power waa not hampered by the con-
stitutional provisions. If, upon the other
hand we assume that the Territorial
clause Of the Constitution was not in
tended to be restricted to such territory
as the United States then possessed, there
is nothing in the Constitution to indicate
that the power of Congress in dealing
with them was intended to be restricted
by any of the other provisions.
ADMISSION OF NEW STATES
'.There is a provision that new States
NAV be admitted by the Congress into
this Union These words. of course,
carry the Constitution with them, but
nothing is said regarding the acquisition
of new territories or the extension OF the
Constitution over them. The hberality of
Congress in legislating the Constitution
into all our contiguous Territories has
undoubtedly fostered the impression that
it went there by its own force, but there
is nothing in the Constitution itself, and
little in the Interpretation put upon 1t, to
confirm that impression. There Is not
even an analogy TO the provisions OF an
ordinary mortgage for its attachment to
after-acquired property, without which II
covers only property existing At the Date
of the mortgage. In short, there is abSo-
lutte silence upon the subject The eXecu-
tive and legislative departments OF the
Government have for more than century
interpreted this silence as preciuding the
idea that the Constitution attached TO
these Territories as soon as acquired, and
unless such Interpretation be manifestly
contrary to the letter or spirit of the
Constitution. 1t should be followed by the
judicial department
Patriotic and intelligent men may differ
widely as to the desirableness Of this or
that acquisition. but this is solely a
political question. We can only consider
this aspect of the case SO far as to say
that no construction of the Constitution
should be adopted which would prevent
Congress from considering each case upon
its merits. unless the language Of the IN
strument imperatiyely demand it, false
step at this time might be fatal to the
development of what Chief Justice Mar
shal called the American Empire. Choice
in some cases, the natural gravitation of
small bodies toward large ones in others,
the result of a successful war in still
Others, may bring about conditions which
would render the annexation of distant
possessions desirable. II those possessions
are inhabited by alien races, differing
from US in religion, customs laws,
methods of taxation, and modes of
thought the administration of govern
Saxon principles. may for time be i'm
possible; and the question at once arises
whether large concessions ought not to be
made Tor time, that, ultimately, our
own theories may be carried out. and the
blessings OF a free government under the
Constitution extended to them. We de-
cline TO hold that there is anything in the
Constitution to forbid such action
we are therefore of opinion that the
island Of Porto Rico is a Territory ap-
purtcnant and belonging To the United
states, but not part of the United States
within the revenue clause of the Consti-
tuition; that the Foraker act is constitu-
uOnal, so far as il imposes duties uDOn
imports from such island, and that the
plantin cannot recover back the duties
eXacted in this case.
The Judgment of the Circuit Court is
therefore affirmed"
MR.. JUSTICE WHITES OPINION.
Mr.. Justice White, concurring in the
judgment of the court that the duty com
piained of was valid. stated that he did
50 upon grounds which We're not only diff
fereni from but in conflict with those ex-
pressed by Justice Brown; and that he
spoke for Justices Shiras and McKenna
us well
There never could be any serious ques-
ton. he said. when the Government of
the United States exercised an authority.
which the Constitution conferred. that the
applicable limitations of the Constitu-
ton controlled it. w hiSt this was true
universally, in every case the question
was not whether the Constitution follow
ed the Nag. but granting that ii did so,
what provision was applicable to partic-
ular cases. The Territories 1t was said, |
whatever be their relation to the United !
States, were, of course, controlled by the |