to each other now, and that it is simply the remnants of such State sovereignty which gave rise to that peculiar use of the term.

It may also be said that they have a sovereign jurisdiction for certain purposes, but the sovereignty over Porto Rico after the cession was the sovereignty of the people of the United States, and certainly Porto Rico could not be foreign to its own sovereign.

There was no government there to be foreign to the United States, there was no sovereignty there to be foreign to the government at the capital. It was precisely the same sovereignty as that under which the States themselves live. It was not under the government of any particular State, and therefore, even in that narrow sense, it could not be said to be foreign to the States.

It was under the jurisdiction of all the people, of all the States, and under such jurisdiction of course it is impossible to say that all the people of all the States governing through their own Government one particular Territory are foreign to that Territory.

Therefore we very earnestly and respectfully submit that there is no possible theory upon which the Dingley Act can be tortured into an authority for the exclusion of goods from Porto Rico.

The Foraker Act makes this distinction between foreign countries and Porto Rico clear, because it enacts that there shall be certain duties upon goods from Porto Rico, which shall be 15 per cent of the duties levied upon goods from foreign countries under the Dingley law.

Thus this construction differentiates between Porto Rico and foreign countries, and in making that distinction it acknowledges the existence of the fact, and is declaratory of the fact, but does not legislate that distinction into existence.

In this connection I will read a few lines from Mr. Justice Story:

"By a foreign port may be understood a port within the dominion of a foreign sovereign and without the dominion of the United States.'

Assuming, then, that Porto Rico is not a foreign country and is a part of the United States, we respectfully submit that the exaction of duties was under a statute which, if meant to exact duties on the products of a country which was a part of the United States, was invalid and unconstitutional for the reason that all duties, imposts, and excises must be uniform throughout the United States. If these propositions are correct, then Porto Rico, being a part of the United States, is therefore subject to this clause of the Constitution, and any law applying to it must conform to this restriction, otherwise it is unconstitutional. Uniformity in taxation, as I understand it, means geographical uniformity. The same article must pay the same duty when coming from any one part of the United States to another; that is, sugar from Porto Rico must pay the same duty as sugar from Louisiana, and tobacco from Porto Rico must pay the same rate as tobacco from Virgina or Maryland, so that there can be no doubt that if Porto Rico be within the United States the Dingley law and the Foraker law taxing those goods are unconstitutional for lack of uniformity.

Mr. Justice BROWN. Does it necessarily follow-conceding your proposition that Porto Rico was not a foreign country under the Dingley Act-does it necessarily follow that it is a part of the United States? Mr. COUDERT. I think that it does, if your honor please, and I pro

pose to argue that point a little more fully. My point is that the exaction of the duty was illegal, because whatever else it might be its status was not that of a foreign country.

I do not know quite what view the learned counsel for the Government take generally as to the Constitution and its limitations. The court below in the Goetze case, the decision here followed, seemed to think that the Constitution only extended over the States of the United States. It may therefore be well to state in a little more detail than we have already done just exactly what our view of the Constitution is. There have been certain phrases used, metaphors which may have a place in the shifting arena of politics, but which are not scientific, are not accurate, and which should not be allowed to confuse the issues in this case, such as the "Constitution follows the flag" or extends "r proprio vigore." These are inaccurate expressions.

Our contention is simply this, as to the Constitution, that the Constitution is not, as one of our learned friends seems to think, something applicable to any particular territory. It is not a constitution of land laws. It is a constitution of government. It created and made a government. The Constitution could not be extended or expanded. The Government might go anywhere, from the North Pole to Indo-China. The Constitution was not therefore extended. It was the Government created by the Constitution which was extended to those territories, which territories are simply land under the jurisdiction of the Government created by the Constitution. That this is a constitution of government, not a land law, is a fact constantly overlooked.

Mr. Justice WHITE. Is that not simply stating the proposition dif ferently? Isn't it simply changing the form of statement, and does not the question then become whether under the Constitution the particular powers were to go everywhere or to be somewhere?

Mr. COUDERT. It seems so to me, and I would not have stated the proposition in so many ways if I did not believe that it had been so misunderstood.

The United States may do what it pleases and go where it pleases. and is absurd to speak of it, as the counsel for the Government has done in this case, as a crippled nation if restricted by the uniformity clause in taxing colonial products.

The nation is omnipotent, and its only limitation of power is the limitation which may be placed upon it by the physical force of other nations. This nation, however, did what I believe no other nation ever did; it passed a self-denying ordinance. It decided that the Government should not do certain things until it, by a full majority of its citizens, had decided to allow it to do those things, and to give the Government a freer hand.

Our nation may do anything, but there are many things our rulers can not do. I would have hesitated to discuss this if we had not had this constant reiteration of the phrase "crippled nation." I do not know if any counsel, except counsel for the Government, has ever used it of this nation before. I am sure I never heard it from anybody until the circuit court and the learned Attorney-General used it. Therefore, it being conceded that the Government has no sphere outside of the Constitution, and must act within that sphere until the Constitution is changed, then we come to the vital question in this case as to whether within the meaning of the uniformity clause Porto Rico is a part of the United States.

I suppose there are two ways in which every proposition can be proved, and only two. If these methods are carried out perfectly the proof is complete. The first is from general principles down to particular propositions. If the general principles and the line of deduction are correct the proposition is correct, and in the second place we can reason from a great number of particular instances and thereby reach a particular proposition. I think we can show Porto Rico to be a part of the United States within the meaning of the Constitution by both of these methods.

In the first place, viewing the language of the Constitution itself. If that were all we had and we interpreted it according to the ordinary sense given to the phrase, there could scarcely be any question as to what was meant in the taxing clause by "throughout the United States." In the second place, if, examining more closely, we tried to see what was actually in the minds of the framers when they made the Constitution, we would reach the same result.

The contention on the other side is that the "United States" " means "States united." It does not mean States and Territories; and therefore if we can show that the framers of the Constitution, when they wrote that clause, had in mind every single foot of territory over which the flag of the United States flew in sovereign jurisdiction, both State and Territory, then I think we have an answer to their contention that “United States" meant only the States.

As we understand it, the treaty with Great Britain defined the limits of the United States. It defined and limited the territory over which the Government of Great Britain recognized that a new government had arisen having full right and jurisdiction. Those limits included great tracts of land claimed, under vague charters, by some of the States, and the ownership of which caused conflict and bitter dissension. In order to remedy that, and before the adoption of the Federal Constitution, while the States were living under the league of friendship, cessions of all this vast territory were made to the United States, so that the United States Government then, and then for the first time, had jurisdiction over it all.

Thereafter the Articles of Confederation thus came to include, in the territorial sense at least, two things. In the first place, only "States united." This was its original meaning. The phrase could be inverted and the meaning was the same; but after the cession it came to include also the ceded territory, which was the germ of our national sovereignty; that territory which the States owned in common. And this required a new name. The framers might have said, as Chief Justice Marshall has done, the American Empire, but they did not; they used the same phrase, The United States. That phrase now covered a vast territory, and from the moment those cessions w re made "The United States' had a meaning not heretofore known, hi a included all that territory, the national territory over which the overnment of the United States and the people of the United States sovereign jurisdiction. Therefore, there is a difference tween "The United States" and "States united" in the Constitution, because between the making of the Articles of Confederation and the Constitution a new fact and factor had arisen, and "United States" meant something more than States united. That the framers of the Constitution understood this can scarcely be doubted.

At the same time that they were framing the Constitution and debating

each separate proposition in detail, some of them were in Congress engaged in draughting the great ordinance for the Northwest Territory. It was in some sort a model for the Constitution. This much, therefore, is clear, that they had the government of that territory in mind. It might seem, if we did not have these pertinent facts before us, that the framers themselves did not intend anything regarding territory and people outside the States, and it might be argued with a certain show of plausibility that they did not intend United States should mean anything but "States united," had they not then had before them this great Northwest Territory and this ordinance. In endeavoring to find out exactly what the nation's Constitution framers were striving to do, and in trying to find out what they intended, we see that the framers had in their minds the Northwest Territory, that they had it there before them, and it is therefore only fair to assume that they understood that the term "United States" could and often did mean the whole country over which the flag flew in sovereign dominion.

If that is not so, I ask, what term was there in the English language which they could have used to include that Territory? There must have been some word to indicate all the lands ceded by Great Britain, and when part of them ceased to belong to the States there must have been some term denoting both it and the States, and it must have been within the term "United States," because there was no other then or now. This meant all the territory included within the provisions of the treaty of peace, the territory for which the nation had fought.

Therefore we see that the phrase itself "United States" may very properly mean in the Constitution exactly what in common everyday conventional language it now means, the whole dominion over which the United States Government has jurisdiction. It may mean that, because all the factors were then, as they are now present, States united (all the factors of the old Confederacy), and the new territory or folkland annexed by the nation.

We have the fact that the new territory was in the minds of the framers, that they had it before them at the time, and it is reasonable to suppose that the expression "throughout the United States" must have indicated the whole of the land ceded by Great Britain.

The framers and the people did not proceed to distinguish difference in their.bill of rights between the people of the land ceded by the States and those of States themselves, nor to decree that the inhabitants of those Territories were to have lesser and fewer rights than if they had remained a part of the States which originally ceded them.

The words "United States" are used in several connections in the Constitution as having the same meaning as we claim here for them. It is fair, in seeking to find an interpretation of a law or statute or of the Constitution, to take into consideration contemporaneous statements and facts; what did the early Congresses do, and how did the Congresses in which some of the framers sat interpret that instrument? I think a survey of the early naturalization laws, the internal-revenue law, and the early customs law will show that the Congress of the United States intended that the same rule as to naturalization and revenue and customs should apply throughout all that territory regardless of whether it was a State or whether it was a Territory of the United States.

The early naturalization laws provided that residence in the territories northwest of the Ohio River should be included within the time

necessary to make a person a citizen of the United States, and the courts of that territory, in, I think, 1795, were empowered to naturalize citizens; so that if the contention of our learned friends be right, we have the remarkable fact that the courts of countries not a part of the United States had the power to make citizens of the United States of persons who had never lived there. Certainly a strange situation.

The internal-revenue laws, which I shall not discuss fully and in detail, because counsel who are to follow me are to discuss them, used the words "in the United States" and "throughout the United States," meaning thereby that the revenue should be collected throughout the Northwest Territory and all places over which the United States had jurisdiction, and certain acts were passed empowering the President to appoint collectors to collect the revenue authorized to be raised by that law within the Northwest Territory. Here, then, is clear proof of what those gentlemen, who were closer to the Constitution by far than any of us, believed is meant by the United States.

JANUARY 9.

Mr. COUDERT. If the honorable court please, before taking up the argument where it was interrupted yesterday by the adjournment of the court, I would like to refer to the question kindly put to me by the learned Mr. Justice Brown. I would like to answer that question now, because in the course of argument it may happen that it may not be touched upon as fully as it deserves, or be answered to the satisfaction of the justice.

As I understood the question, the learned justice desired to know whether a country can cease to be a foreign country and yet not be a part of the United States. An answer to that question is found in two cases, Fleming v. Page and Cross v. Harrison, and both of these cases are of course so familiar to the court that it would be a waste of time to discuss them.

I think there is a peculiar situation in which a foreign country may find itself; it may be under the temporary jurisdiction of the United States military forces. The boundaries of the United States do not advance nor recede with the armies of the United States. The people of such country are under the temporary military jurisdiction of the United States. Such a place, under Chief Justice Taney's construction, and I think it is a perfectly correct view, entirely in accordance with the usual dicta of international law, is a foreign country. Why? Because there is still a foreign element in it. The foreign sovereign has some rights remaining. They are temporarily suspended and can not for the moment be exercised, as was the jurisdiction of the United States in Castine in the second war with Great Britain. Nevertheless the dispossessed sovereign has certain rights there, and should the advancing army of the United States cease to advance and begin to recede, he could come back, and his rights, which were simply dormant, would then spring into existence, and the antebellum status revive under that rule of the law of nations denominated post liminium.

For that reason I think a country in such situation might come within the general category of a foreign country. The apparent anomaly is that the jurisdiction of the foreign sovereign is for the moment ousted; but still the sovereign has rights, which remain until H. Doc. 509-38

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