The learned Board of Appraisers, whose views are set forth in the opinion delivered by Judge Somerville (R., pp. 8-21), held that "while Porto Rico was unquestionably a part of the United States in the sense that it was owned by this Government, and was completely under its sovereign," it was "foreign to the United States for fiscal or tariff purposes" because it had not "been brought under the domain of the nation by special legislative action by Congress" (18). They considered that it followed from this that taxes might be collected under the authority of an act of Congress, without regard to the constitutional prescription of uniformity, and that such a question was essentially different from that which would have been presented if Congress had undertaken "to pass laws for the government of this newly acquired territory, and had passed a tariff act extending over the island, with rates of duty different from those imposed by the general tariff laws applicable to other parts of the country;" and upon the constitutionality of such action on the part of Congress they expressly declined to pass (R., p. 19).

The appeal from the Board of General Appraisers was argued before his honor, Judge Townsend, whose opinion, on affirming the board's decision, will be found at pp. 21 to 35 of the record.

The learned judge did not find it necessary to consider, separately, the appellant's contention that the tariff act could not be interpreted as imposing a duty upon goods brought from Porto Rico after annexation because, in his judgment, this contention fell to the ground if it were true that "Porto Rico was a foreign country, in the sense that the constitutional provision for uniform duties does not apply to it” (R., p. 31); and his opinion is devoted to a discussion of that question. His opinion may be summarized as follows, mostly in his own words: "The sphere of application of the Constitution is determined, not by considerations of title to land, but by recognition of the status of its inhabitants. New territory is not brought under the Constitution by acquisition of the soil, * but either by an incorporation of the inhabitants into the Union or by an extension of our laws and institutions throughout the territory." This can be done only by treaty or by legislation. The treaty has not done so; on the contrary, the people of the island are "left to find a determination of their status in Congressional action." There has been no "extension of our laws and institutions to the island" by Congress; and it is therefore "part of the United States, but still a foreign country." (R., p. 26.)

*

"The power to hold territory without incorporating it as an integral part under its organic law is an ordinary attribute of sovereignty which the States "possessed before the formation of the Union," and which "they delegated to the Federal Government in the treaty and war-making powers." (R., p. 31.)

Our Government" may, therefore, "by treaty accept the title and sovereignty over territory and at the same time preserve its status as a foreign country so far as its internal relation to us is concerned." (R., p. 27.)

"From the standpoint of international law, as regards other nations, Porto Rico is annexed to the Union and has become fully a part of the United States. The title to the soil is in us as exclusively as is that to any portion of this continent. Its political status is determined by the treaty. It is now a part of our dominion, undistinguishable from any other part of the United States, so far as other powers are concerned"

was

*

*

* * *

(R., p. 25); "but from the standpoint of constitutional law" (R., p. 25) "the treaty of Paris left the political status of the inhabitants of Porto Rico unchanged. Their status at the time of cession that of inhabitants of a foreign country as regards the Constitution of the United States and within the meaning of the tariff acts. The treaty of cession did not change that status, and as Congress had not acted at the time of this importation, Porto Rico was still a foreign country in the sense of the tariff law, and duties were lawfully assessed on the articles imported therefrom." (R., p. 35.)

From the decision entered accordingly this appeal was taken direct to this court, the case coming within 5 of the act of March 3, 1891. The appeal was certified to and allowed by the circuit court pursuant to § 15 of the act of June 10, 1890 (R., p. 39).

SPECIFCATION OF ERRORS.

The decree is alleged by the appellant to be erroneous in that it affirms, instead of reversing, the decision of the Board of General Appraisers, and in that it was thereby held that the exaction of which the appellant complains was both directed by the tariff act and sanctioned by the Constitution.

The errors into which we conceive the learned judge below to have fallen in reaching the conclusion of which we complain consisted:

1. In holding that Porto Rico, whether a colony, dependency, territory, province, or what not, was within the meaning of the tariff act a foreign country although in the permanent and exclusive control and dominion of the United States.

2. In holding that Porto Rico, when annexed by this nation, did not become a part of the United States within the meaning of the provision of the Constitution which requires that "all duties, imposts, and excises shall be uniform throughout the United States."

3. In holding that it was the meaning and intent of the treaty of Paris that Porto Rico should be governed as a foreign country without regard to constitutional restrictions, and that the treaty was effectual, under the Constitution, to accomplish this result.

4. In holding that it depends upon the will of the Government whether upon an annexation of new territory it shall exercise unrestricted power therein or only the restricted powers conferred upon the Government by the Constitution.

ARGUMENT.

INTRODUCTORY.

According to our views, the meaning of the words "imported from foreign countries" has nothing to do with the extent of the powers of the Government in exercising its functions in Porto Rico, or with the existence or the extent of social or civil rights of its inhabitants. It is a mere question, and, as we believe, a plain question, whether from those words there can be deduced an intention on the part of Congress to levy a tax on goods brought from any place within the dominion of the nation to another. It relates, to paraphrase the words of Daniel Webster in his argument in Fleming v. Page (cited infra), to "our own office" in New York; "It has no connection with contributions levied" in Porto Rico "or collecting duties there."

So, again, we consider the meaning of the uniformity clause in the Constitution and its application to the present case as not depending upon the broader question whether the legislative intent and constitutional effect of the treaty of Paris was to give to the Government-as distinguished from the nation-an unlimited or a limited dominion over the island. So far as the two questions are related, we rather believe that the question whether the powers of the Government are unlimited will be answered, in one aspect at least, by determining whether the meaning of that phrase is not that all duties, etc., must be uniform throughout all territory within the national dominion.

It might be more orderly to present our argument upon these our primary claims before proceeding to wider considerations which really belong to our reply to the attempt of the Government to meet them; but we find that it will save some repetition, and altogether be more convenient, if we reverse our natural course and follow, to some extent at least, the order of argument adopted in the opinion of the learned judge below.

In order to avoid any misunderstanding of the appellant's claim, and in order, also, to simplify our argument, it will be well, before entering upon controversial questions, to state at once the matters as to which there may be no dispute. Let it be understood, then, at the outset that we unreservedly make these

CONCESSIONS.

1. That the people of the United States is an absolute sovereign nation, and is, humanly speaking, omnipotent, and that the Constitution of the United States is a mere expression of the will of the people and subject to alteration or annihilation at its pleasure.

2. That the power to declare and carry on war has been, fully and without restrictions, delegated by the people to its constitutional agents, and that it includes the power to occupy foreign territory, and to govern it and its inhabitants while it remains foreign territory, subject only to the rules and usages of civilized warfare under international law.

3. That the people has, by implication, delegated to its constitutional agents the power to add permanent acquisitions to its territory, for certain purposes at least, and that when such an acquisition is made it must conclusively be presumed by the judicial branch of the Government that it was made for those purposes alone for which the power was delegated.

4. That the war power, to the full extent admitted above, does not cease with the mere cessation of hostilities, but continues in full force until the power permanently to acquire territory is exercised, or until the occupation is terminated.

5. That the suffrage, the right of representation, and other political franchises may be granted to or withheld from the inhabitants of such annexed territory, according to the discretion of the Congress of the United States, until the territory becomes a State, or a part of a State.

I.

THE PEOPLE OF THE UNITED STATES IN ORGANIZING THE GOVERNMENT OF THE UNITED STATES HAVE ESTABLISHED CERTAIN LIMITS NEVER AND NOWHERE TO BE TRANSCENDED, AND THAT THOSE LIMITS MAY NOT BE TRANSCENDED THE CONSTITUTION IS WRITTEN.

CONSTITUTIONAL LIMITATIONS ARE THE UBIQUITOUS CONCOMITANTS OF

CONSTITUTIONAL POWERS.

1.

The claim of unlimited power in new territory is opposed to our entire theory of constitutional government.

The decision of the circuit court is not based upon any consideration either of the nature of the particular power of whose abuse the appellant complains or of the particular limitation of power which he invokes.

The pretensions which it sustains relate to the exercise of all conceivable powers of government, and the only limitation which they contemplate is the limitation of constitutional limitations.

These pretensions are put forth in the behalf, not of the people of the United States, but of the Government of the United States.

But the Government finds its origin, its powers, and all its attributes in the will of the people, nowhere expressed but in the Constitution of the United States. There is then no Government of the United States but that ordained in the Constitution, and no powers have been conferred upon it except by the Constitution. That any power which it can exercise anywhere is necessarily derived from the Constitution must be conceded.

These mere truisms are fatal to the claim of the Government at the very moment when it is fully stated, with all its logical consequences. The claim made by our opponents is that the Government of the United States has power to extend the national dominion, by cession or by conquest, to every part of the world, and to govern all territories so acquired according to its own unlimited will and discretion, for the concession that "a republic can not be allowed to govern without any restraint" (R., p. 33) is valueless when coupled with the assertion that there is no definition or limitation of its powers.

It amounts, then, to no less than this, that, so far as concerns such territory, the supreme will of the people stopped short at the mere organizing of the Government, and established no limit which it could not transcend; or, in other words, that it did not provide a written Constitution for the whole, but only for a part, of the national dominion.

"The original and supreme will organizes the Government and assigns to different departments their respective powers. It may either stop here or establish certain limits not to be transcended by those departments.

The Government of the United States is of the latter description. The powers of the legislature are defined and limited, and that these limits may not be mistaken or forgotten, the Constitution is written." (Per Marshall, C. J., in Marbury v. Madison, 1 Cr., 176.)

H. Doc. 509- 4

We are now told that the one and only Government of the United States is "of the latter description" only when it acts within certain geographical boundaries, and that everywhere else the Constitution is not a constitution in the American sense of the term, but a delegation of universal power.

It is not too much to say that such a claim strikes at the very founda tion of our whole system of constitutional government.

"When we consider the nature and theory of our institutions of government, the principles upon which they are supposed to rest, and to review the history of their development, we are constrained to conclude that they do not mean to leave room for the play and action of purely personal and arbitrary power. Sovereignty itself is, of course, not subject to law, for it is the author and source of law, but in our system, while sovereign powers are delegated to the agencies of the Government, sovereignty itself remains with the people, by whom and for whom all government exists and acts. And the law is the definition and limitation of power." (Matthews, J., in Yick Wo v. Hopkins, 118 U. S., 370.)

"The theory of our governments, both State and national, is opposed to the deposit of unlimited power anywhere. The executive, the legislative, and the judicial branches of these governments are all of limited and defined powers." (Miller, J., in Loan Assoc'n v. Topeka, 20 Wall., 663.)

We assert, then-and we repeat that we are asserting the merest truism that the people of the United States have established by the Constitution one national Government of defined and enumerated pow ers, which, wherever it exercises those powers, is restricted not only to those means which are "appropriate and plainly adapted to the end in view," but to those which are not prohibited, but consist with the letter and spirit of the Constitution."

66

And if we had no other ground for asserting that the powers of that Government were limited, wherever its dominion is exercised, we should find one amply sufficient in the fact that the Constitution contains express prohibitions framed in terms universal and unqualified.

Being universal and unqualified, these prohibitions necessarily restrict the Government, so far as concerns the powers to which they apply, wherever it may act in the exercise of its delegated dominion, and as much when it exercises the delegated power to acquire and govern new territory as in any other case.

And it being thus demonstrated that those restrictions are universal in their application, there is no reason, even if it were not otherwise contrary to reason, to question the universality of the implied restrictions which are welded into the framework of our whole system of constitutional government.

2.

Incorporation under our organic law.

We believe that in our attempt to state the claim, which we are endeavoring to refute, we have not stated it one whit more broadly than in the form in which it is upheld by the learned judge in the circuit court when he speaks of the Government as possessing "the power to acquire territory without incorporating it as an integral part