IV.

DUTIES COLLECTED IN THE UNITED STATES ON PORTO RICAN GOODS UNDER THE DINGLEY LAW AFTER THE TREATY AND BEFORE THE PORTO RICAN ACT.

The De Lima case (No. 456), growing out of the collection of duties on goods imported from Porto Rico into New York in June, July, and 1899, after the ratification of the treaty of Paris and before the passage of the Porto Rican act, which took effect May 1, 1900, raises the questions already so fully discussed in the Goetze case.

It is not my purpose to repeat the able and elaborate historical argument presented on behalf of the Government in that case. I desire, however, in my own way, to lay before the court some considerations which seem to me to be pertinent in the determination of the matters submitted.

Reduced to a legal proposition, the denial of the power which is being exercised by the President and by Congress, in the new territories, amounts to this: Ceded territory becomes by the act of cession an integral part of the United States, to which the Constitution of its own force at once applies, placing its people, its products, and its ports on an immediate equality with ours, and conferring upon them all the rights, privileges, and immunities enjoyed under the Constitution by the people, the products, and the ports of the several States. Moreover, the limitations of the Constitution apply there as here, requiring the same taxes, imposts, duties, and excises to be collected and the same Anglo-Saxon system of trial by jury to be used. Their people become at once our people, citizens of the United States; our ports become their ports, and our markets their markets; they are free to come here or to sell their products here, while our taxes and our laws, however unsuitable, must go there.

There is nothing obscure about this doctrine. It is plain and unmistakable. The act of cession is all powerful, its effect immutable. As soon as the title passes, the territory is incorporated within the United States, and the Constitution, ex proprio vigore, does the rest. The proposition is true as stated or not true at all. Either the mere act of cession, irrespective of the terms of the treaty, and regardless of the action of Congress, makes acquired territory a part of the United States in the constitutional sense, or it does not. If it does, the treaty-making power, in acquiring territory, is necessarily limited to providing for the mere act of cession. It can make no terms; it can not take temporarily or provisionally, or for this purpose or that; it can give no pledges; it can grant no privileges; it can reserve no questions for future disposition; in short, although called the treaty-making power, and granted without limitation, it is stripped of its proper functions, it can not treat, it is lame, impotent, impossible, ridiculous.

On the other hand, if the territory does not, by the mere act of cession, become immediately an integral part of the United States in the constitutional sense, of necessity the provisions of the treaty and the action of Congress must determine whether it shall or shall not become or be deemed a part of the United States, and if ever, when. In other words, the acquired territory becomes not a part but a possession of the United States, territory belonging to the United States, and its disposition and government rest, under the Constitution, with the

treaty-making power and with Congress. The President can not extend the boundaries of the United States. It takes the legislative power to do so, and it may do so upon what terms it deems best.

In the noted case of Fleming v. Page (9 How., 603, 614), Chief Justice Taney says that the United States "may demand the cession of territory as the condition of peace, in order to indemnify its citizens for the injuries they have suffered, or to reimburse the Government for the expenses of the war." If territory may be acquired for such purpose, it certainly may be taken and held upon such terms and conditions as may be proper and necessary to carry the purpose into effect. Terri tory acquired to indemnify and reimburse may be taken and held as a pledge or as a possession, provisionally or indefinitely, with the reserved power of disposition and control suitable to accomplish the desired end. To incorporate such territory into the Union and make it a part of the United States would defeat the very object of the acquisition. Once there it would have to stay, for no power exists within the Union to dismember it.

If Chief Justice Taney was wrong and we can not take territory sub modo, to indemnify or reimburse us, but only to make it a part of the United States, then before the President carries a war into the enemy's country he should send a commission ahead of the Army to ascertain and report whether the territory he proposes to invade and conquer is fit to be made a part of the United States, for neither the treaty-making power nor Congress can prevent that result if a cession follows conquest. Before the President sent Dewey to Manila, he should have satisfied himself that the Philippines were suitable for incorporation into the Union, for we could destroy the Spanish power there only at the risk of having to assume the burdens of sovereignty ourselves.

THE TREATY OF PARIS.

The Constitution, while vesting in the President and Senate the treaty-making power, provides that "This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land." (Article VI.) The treaty of Paris was made "under the authority of the United States," and contains the terms upon which we acquired these Territories. It is unique in this, that while former treaties of cession all provided that the civilized inhabitants of the ceded territories should ultimately become citizens, not immediately, of the United States, this treaty left the determination of their civil rights and political status to Congress. Let me refer to a few pertinent provisions.

Spain ceded to the United States Porto Rico, Guam (article 2), and the Philippines (article 3). Spanish subjects, natives of the Peninsula, residing in such territories, were given one year from the exchange of ratifications; that is, until April 11, 1900, to preserve their allegiance to Spain by making a declaration in a court of record. In default of this, they were to be held to have adopted, not the nationality of the acquiring power, but the “nationality of the territory in which they may reside" (article 9). Then comes this striking provision:

The civil rights and political status of the native inhabitants of the territories hereby ceded to the United States shall be determined by the Congress.

Spaniards residing in the territories were to be "subject to the jurisdiction of the courts of the country," not the courts of the United States, "pursuant to the ordinary laws governing the same" (presumably the Spanish or civil law), and were to have the right to appear and pursue the same course therein " as citizens of the country to which the courts belong" (article 11), not as citizens of the United

States.

For ten years Spanish ships and merchandise were to be admitted to the ports of the Philippines on the same terms as ships and merchandise of the United States (article 4), and for ten years Spanish scientific, literary, and artistic works were to be admitted free of duty into all the ceded territories (article 13). Neither of these provisions can be carried out if the Constitution requires our customs regulations to apply there as here.

The purpose of these provisions is plain. Although under the power and protection of the United States, the territories are to have their own laws, their own courts, their own ports, their own commerce, their own citizenship, their own system of revenue. A separate and distinct existence under, but without, the United States is contemplated. The parties to the treaty both knew that the location and condition of these islands would not permit their incorporation into the United States and the application to them of those laws of commerce, of revenue, and of civil and criminal procedure, which the Constitution requires to be uniform throughout the United States. They provided, therefore, for a system of government which should be adapted to local conditions and needs. Are we free to disregard the plain provisions of the treaty which the Constitution says shall be the supreme law of the land? If so, what becomes of the consent of the treaty-making power to the acquisition? Would the President and the Senate have consented to take the territories upon any other terms? Would Spain have consented to cede them?

Certainly the treaty never intended to make these tropical islands a part of the United States in the constitutional sense, and just as certainly did make them a part of the United States in the international sense. The term "the United States" may mean the territory which governs or the territory over which the government extends. The former is the constitutional, the latter the international, or it may be the legislative, sense. In the latter sense, States and Territories, all places subject to the jurisdiction of the national power, combine to constitute what Chief Justice Marshall, in Loughborough v. Blake (5 Wheaton, 317, 319) (1820), termed the "American Empire," "Our Great Republic.

"Does this term," said he, referring to the "United States," "designate the whole or any particular portion of the American Empire? Certainly this question can admit of but one answer. It is the name

given to our Great Republic, which is composed of States and Territories." The great Chief Justice was clearly correct in holding that the taxing power extends throughout the United States in the international sense, although the limitation of the Constitution on the taxing power applies, as we contend, only throughout the United States in the constitutional sense. What we are concerned with is the constitutional sense, for the vital question is whether the limitations and prohibitions which under the Constitution apply throughout the United States, operate in our new territories.

THE CONSTITUTION.

As stated in its Preamble, the Constitution of the United States was ordained and established by "the people of the United States" "for the United States of America." There is no ambiguity about the meaning of the words "United States of America" as here used. They mean the States united under the Constitution, and are named individually in the second section of the first article. They were the thirteen Colonies which had first become United States in the Declaration and under the Confederation, and which, through their people, framed the present Constitution in order, among other things, to form a more perfect Union. This conclusively appears from the sixth article, which provides that all debts contracted before the adoption of the Constitution shall be as valid against the United States under the Constitution as under the Confederation."

The fact is not to be lost sight of that the primary source of sovereign power was the people of the thirteen original States. These men believed they were forming a government that would endure for ages and dominate a continent, but it does not appear they worried themselves about the "consent of the governed" outside the States they inhabited, which alone were to participate in political power. They formed a government in which the people of the States were alone represented, and adopted a Constitution which, in its distribution and limitation of powers, applied almost wholly to the States, united or several.

In the early case of Hepburn v. Ellzey (2 Cranch, 445), (1805), the question came before the Supreme Court whether a citizen of the Dis trict of Columbia could maintain an action against a citizen of Virginia. In support of the jurisdiction Mr. Lee insisted that to give the term State a limited construction would deprive the citizens of the District of the general rights of citizens of the United States and put them in a worse condition than aliens; and he put the pertinent question, whether, in the face of the provision that "No tax or duty shall be laid on articles exported from any State," Congress could lay a tax or duty on articles exported from the District of Columbia. But the court properly held that a citizen of the District is not a citizen of a State and can not use the United States courts as such, Chief Justice Marshall saying (p. 452):

The members of the American confederacy only are the States contemplated in the Constitution. The House of Representatives is to be composed of members chosen by the people of the several States; and each State shall have at least one Representative. The Senate of the United States shall be composed of two Senators from each State. Each State shall appoint, for the election of the Executive, a number of electors equal to its whole number of Senators and Representatives. These clauses show that the word State is used in the Constitution as designating a member of the Union.

It is obvious that this ruling applies, and indeed it was subsequently held to apply, to the citizens of the Territories.

The States alone are the members of the American confederacy: they constitute the Union, and the Union and the United States are equivalent terms in the Constitution. Thus the Constitution and "the laws of the United States" are made the supreme law of the land

(article 6, clause 2), yet Congress is to provide for calling forth the militia to execute "the laws of the Union" (article 1, section 8, clause 15). All legislative powers granted are vested in the Congress "of the United States" (article 1, section 1), but the President is required, from time to time, to give to the Congress information of the state "of the Union" (article 2, section 3).

In the first article, defining the legislative powers, it is provided that "Representatives and direct taxes shall be apportioned among the several States which may be included within this Union." This does not include the Territories, but does operate throughout the United States.

"Duties, imposts, and excises shall be uniform throughout the United States." This, too, is a geographical limitation, requiring indirect taxes to operate generally throughout the United Statesthat is, among the several States composing the Union. The history of the adoption of this provision will be found, in interesting form, in the learned opinion of Mr. Justice White, in the recent case of Knowlton v. Moore (178 U. S., 41), sustaining the constitutionality of the Federal tax on legacies. In the original draft, the provision prohibiting any preference to the ports of one State over those of another and that conferring and limiting the taxing power, were placed together. They really mean the same thing, that the States of the Union shall be treated alike in the regulation of commerce and the imposition of taxes. The uniformity required in each case was a uniformity among the several States of the Union. And this is shown by the decision in the Cherokee Tobacco Case (11 Wall., 616), affirming the constitutionality of the act of 1868, extending the excise tax on liquors and tobacco alone to the Indian Territory. A minority of the court (Justices Bradley and Davis) held, in view of the treaty provisions, that it was not the intention of Congress to extend even the tax on liquors and tobacco to the Indian Territory. Obviously, the court was unanimous in the opinion that, although the Indian Territory is within the exterior boundaries of the United States, the provision of the Constitution requiring excises to be uniform throughout the United States does not apply within the Indian Territory, a conclusion which effectually disposes of the dictum in Loughborough v. Blake.

The Constitution gives Congress power to regulate commerce "among the several States" and "to establish a uniform rule of naturalization and uniform laws on the subject of bankruptcy throughout the United States." This was to remedy the mischief resulting from the diverse and conflicting legislation of the several States, by securing uniform provisions throughout the States of the Union (Federalist. No. 41, Madison.) The early laws of this character applied only within the States. The recent acts have properly been extended to the contiguous Territories which Congress, in its discretion, has seen fit to treat as a part of the United States.

It is provided that "no tax or duty shall be laid on articles exported from any State," but nothing is said about any Territory; and that "no preference shall be given by any regulation of commerce or revenue to the ports of one State over those of another, nor shall vessels bound to or from one State be obliged to enter, clear, or pay duties in another:" but nothing is said about the ports of any Territory.

The prohibitions of the tenth section of the first article apply only to the States: No State shall pass any bill of attainder, ex post facto