2.

Any unconstitutional provisions in the treaty are void.

1. As we have already seen, a treaty, in the view of our American jurisprudence, is a mere law, and of no higher authority than any other law. An act of Congress and a treaty stand upon so precisely the same footing that a law of either kind may repeal one of the other kind. (See cases cited supra, p. 38.) The Constitution, treaties, and acts of Congress make up "the law of the land." But in case of conflict one must be supreme over the others, and that one is the Constitution. The argument upon which it would be predicated that it is not the duty of the court to support the Constitution against a treaty which conflicted with it must be precisely the same by which, early in the history of this court, it was sought to prove the same of an act of Congress, and certainly no one who so much as dips his foot in the resistless current of reasoning which overwhelmed the advocates of that doctrine will venture further in.

Marbury v. Madison, 1 Cr., 176–180.

2. It has never yet become necessary for the courts to declare a treaty or any provision of a treaty to be unconstitutional. But more than once in discussing the nature of treaties as a part of the "law of the land," they have had occasion to state the limitations upon the treaty-making power.

Geofroy v. Riggs, 133 U. S., 258, 271.

Field, J.: "The treaty power, as expressed in the Constitution, is in terms unlimited except by those restraints which are found in that instrument against the action of the Government or of its Departments, and those arising from the nature of the Government itself and of that of the States. It would not be contended that it extends so far as to authorize what the Constitution forbids, or a change in the character of the Government or in that of one of the States, or a cession of any portion of the territory of the latter without its consent."

Doe v. Braden, 16 How., 657.

Taney, C. J.: "The treaty is therefore a law made by the proper authority, and the courts of justice have no right to annul or disregard any of its provisions, unless they violate the Constitution of the United States."

New Orleans v. United States, 10 Peters, 736.

McLean, J.: "The Government of the United States, as was well observed in the argument, is one of limited powers. It can exercise authority over no subjects except those which have been delegated to it. Congress can not by legislation enlarge the Federal jurisdiction, nor can it be enlarged under the treaty-making power."

See also Pollard's Lessee v. Hagan, 3 How., 225, per McKinley, J.; quoted supra at p. 65.

These citations seem to us to put it beyond question that the power to make treaties, like the power to regulate commerce or any other

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express power (supra, p. 16), can be exercised only with regard to the general prohibitory clauses of the Constitution. We are not, however, required by the exigencies of this case to push the doctrine to that extent, for we have seen that Article IX of the treaty of Paris does not conflict with the Constitution unless it be interpreted not as a part of an adjustment of differences between our own and another nation, but as an attempt of an unconstitutional delegation of unconstitutional power by the treaty-making to the legislative branch of the Government.

3.

Annexation not affected by unconstitutionality of part or whole of treaty.

The learned judge below would seem to have fallen into a grave error when he asserted (R., p. 31), "if the treaty must be declared unconstitutional, Porto Rico remains a foreign country." That error seems to us to consist in the assumption that the efficiency of the annexation depends on the validity of the stipulations of the treaty, and that Article IX is a promise by the United States to Spain. But it is too plain for dispute that the judicial branch of the Government is bound by the mere fact of annexation; and annexation may become a fact accomplished without any treaty at all, as in the case suggested by Marshall, J., in the Canter Case, where the conquered nation is "entirely subdued." That the will of the Government to effect the annexation is expressed by the making of a treaty is merely accidental and does not in any way affect the nature of the act. And if there be stipulations in a treaty which the Government of the United States can not perform, the matter is one for adjustment by that branch of the Government which is charged with our international relations.

The relinquishment of sovereignty by the former possessor is certainly not indispensable, as the free act of an owner of real estate is to the transfer of the title. Annexation is accomplished when the conqueror secures firm possession and declares his will to treat such possession as permanent. And if that conqueror is the United States, neither its will, expressed through its constitutionally delegated agents, nor the result of its expression are the subject of question by the judicial branch of its government.

Foster v. Neilson, 2 Pet., 253, 309;

Jones v. U. S., 137 U. S., 202.

In the case last cited this court said (per Gray, J., p. 212):

"Who is the sovereign de jure or de facto of a territory is not a judicial but a political question, the determination of which by the legislative and executive departments of any government conclusively binds the judges, as well as other officers, citizens, and subjects of that government. This principle has always been applied by this court, and has been affirmed under a great variety of circumstances."

The constitutional question which we raise, however, is not one which depends in any way upon the means by which the annexation was brought about. It assumes and is based upon the accomplished fact of annexation, and relates only to the power of the government over the territory annexed. The former is a political, the latter a judicial question.

III.

IF THE TARIFF ACT IMPOSES A DUTY OR TAX UPON GOODS BROUGHT FROM PORTO RICO TO A PLACE ELSEWHERE IN THE UNITED STATES AFTER THE ANNEXATION, THE IMPOSITION IS VOID AS BEING IN CONFLICT WITH AN EXPRESS PROVISION OF THE CONSTITUTION.

1.

"Throughout the United States."

The power conferred upon Congress by section 8 of Article I of the Constitution to "lay and collect taxes, duties, imposts, and excises" is immediately limited in these words:

"But all duties, imposts, and excises shall be uniform throughout the United States."

What is the meaning of the three words "the United States?" That, we take it, is the only question to be discussed; for it has not yet been, and will not, we presume, be denied that the imposition of a duty or excise only on goods brought from one or more specified States of the Union, or specified places therein, to other places within the limits of the States (as distinguished from the Territories) would violate this provision of the Constitution. In other words, the question is whether the words "the United States," which are undoubtedly used here in a geographical sense (Knowlton v. Moore, 178 U. S., 41), indicate the complete territorial limits over which the Government of that entity known also in the Constitution as "the United States" extends, or only that part of them which is also included in the limits of the several States which are under the Constitution.

2.

Loughborough v. Blake.

In Loughborough v. Blake, 5 Wheat., 317, this precise question was as squarely decided as any that ever arose in a court of law, and it was so decided by a court as imposing in authority as any which ever passed upon a constitutional question.

The subject under consideration was the right of the Congress to include the District of Columbia in the imposition of a general direct tax. Counsel for plaintiff, while admitting that under another grant. of power Congress had authority to lay a special direct tax on the District for local purposes, claimed that, so far at least as direct taxes were concerned, the grant of power to lay and collect taxes under § 8 of Article I did not extend to the District, because it was limited by the provision in § 2 of the same article that "Representatives and direct taxes shall be apportioned among the several States which may be included in this Union according to their respective numbers," and by the provision in § 9 that "no capitation or direct tax shall be laid unless in proportion to the census," which the Constitution directs to be taken (Art. I, § 2) of the inhabitants of the several States. Both of these provisions, counsel claimed, were evidently inapplicable except to the States.

Chief Justice Marshall's first step towards refuting this argument was to prove that the grant of power extended "to all places over which the Government extends," with a view to the next step, which was that an exception to an express grant will only be found in equally expressed terms. ("The power having been expressly granted, the exception would have been expressly made," p. 320.)

Now, the crucial test of the express and general nature of the grant was found by Judge Marshall in the very provision which we are considering, i. e., the words "but all duties, imposts, and excises shall be uniform throughout the United States:"

"It will not be contended that the modification of the power extends to places to which the power itself does not extend. The power, then, to lay and collect duties, imposts, and excises may be exercised, and must be exercised, throughout the United States. Does this term designate the whole or any 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 District of Columbia, or the territory west of the Missouri, is not less within the United States than Maryland or Pennsylvania; and it is not less necessary, on the principles of our Constitution, that uniformity in the imposition of imposts, duties, and excises should be observed in the one than in the other. Since, then, the power to lay and collect taxes, which includes direct taxes, is obviously coextensive with the power to lay and collect duties, imposts, and excises, and since the latter extends throughout the United States, it follows that the power to impose direct taxes also extends throughout the United States" (p. 319).

Thus the proposition that the words "throughout the United States" designated the whole of "the American empire" was a link in the chain of reasoning by which the conclusion was reached that the tax under consideration was valid.

If any statement of law, no matter how material a step it be in the chain of reasoning leading to the decision of a case, is to be considered a dictum because the same conclusion might be reached by a different argument, this may be a dictum; otherwise not; but if so, no decision is an authority if it can be supported upon two grounds.

We rely upon this case, then, as upon an authority directly in point; but it remains, in the light which the comprehensive but concise opinion of Judge Marshall affords, to amplify the argument upon which his decision rests and to consider more minutely both the letter of the Constitution and the principles to which the Chief Justice adverts as making necessary the construction which he puts upon it.

3.

The principles of the uniformity provision.

Up to this point of our argument it has been our object to prove that Porto Rico is a part of the United States, not only in that the land had been added to the former territorial possessions of the nation, but in that, as a necessary consequence of such additions, its inhabitants and those within our former limits are under a common Government,

exercising authority everywhere by a single delegation of powers, and subject everywhere not only to the same inherent restrictions, but to certain express prohibitions, which, being imposed in general and comprehensive terms, are everywhere restrictive of any exercise of power conflicting with them, and which, being based upon universal principles of right and justice-according to the notions of right and justice at least of those who framed them-must have been intended to be of universal operation.

It remains to be considered whether the particular prohibition which this appellant seeks to interpose between himself and the action of the Government is, in its letter and by its spirit, to be placed in the same category.

We assert that it is; that in its terms it is as general and comprehensive a prohibition as those with which we have hitherto dealt, and that among its purposes was that of securing every portion of the territory over which the most formidable power of the Government-the power to tax-extended from a partial and oppressive exercise of that power, so far as such security was compatible with the necessities of the case, and those necessities did not require any discrimination between the States and the Territories.

And, furthermore, we assert that the history of its origin shows that peculiar motives existed to urge the framers of the Constitution to restrict the power of taxation, wherever exercised, even if the demands of justice and right had not appealed to them to apply the other prohibitions of the Constitution beyond the limit of the States themselves.

And first, as to the spirit of the instrument. In the absence of any causes arising from local jealousy and mistrust, what, if any, restrictions upon the "power of the purse" should we expect, from our knowledge of their motives and desires, to find the people of the United States imposing upon their Government?

Before answering the question we must be permitted to say, at the risk of repetition, that we distinctly recognize and unhesitatingly admit that the question of the Territories and their inhabitants was undoubtedly a matter of secondary importance in the minds of the members of the Federal convention, and that the immediate, pressing, and personal necessity was for a more perfect union which would "provide for the common defense and promote the general welfare" of those who then stood directly in need of it; that is, of themselves the people of the several States, who composed the people of the United States. We insist, however, that it would be contrary to the elementary canons of constitutional construction as well as to historical truth to assume that our fathers looked no further than this, and either to forget that "the instrument was not intended to provide merely for the exigencies of a few years, but was to endure through a long lapse of ages" (per Story, J., 1 Wb., 304), or to assume that those who ordained it failed to take into account the future growth and importance, not to say the very existence, of the immense tracts of fertile country then belonging to the nation, and the certainty that it would derive its population from "themselves and their posterity" (see per Curtis, J., in Dred Scott v. Sandford, 19 How., 605-612), and rise in due course to the absolute equality of statehood.

Taking these matters into consideration, we say, then, that in such an instrument we should expect, a priori, not only to find, as we unquestionably do find, such limitations upon that most dreaded power