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Littlefield Criticises Court.
The following report of Congressman Lit
tleficlcTs address before the American Bar As
sociation is taken from the columns of the
Denver News:
"Tho Insular Cases" was the title of the ad
dress by Chafes E. Littlefield; M. C., of Rodkland,
Me. Ho said: "' ' '
''This year of our Lord"has been one of un
usual1 significance to the legal profession. ' It has
seen universal and spontaneous homage paid by"
bench and bar, and country, to 'the great chief jus
lice' 'the greatest judge in the language.' Ho is
conceded to be the greatest authority upon the con
struction of the constitution that ever adorned
thb most august tribunal known to our institutions.
All agree that, more than any other man realizing
th!at our 'constitution is formed for ages to come,
and is designed to approach immortality as nearly
as human institutions can approach,' he expounded
and developed it, with scientific accuracy upon en
during lines, buttressed by. accurate reasoning,
'establishing those sure and solid principles of gov
ernment on which our constitutional system rests.'
The supremo court of the United States suspended
its sittings in order that through its distinguished
chief it might witness 'to the immortality of the
fame of this sweet and virtuous soul, whose powers
were so admirable and the results of their exercise
of such transcendent importance.' It is certainly
ai interesting and significant fact, that at the same
term during which these ever memorable exercises
occurred, that court rendered a judgment by a dis
agreeing majority of one, overruling a case which
had withstood unimpaired the assaults of time tor
eighty years. A case decided by the same tribunal
by a unanimous court, whose reasons therefor were
luminously stated with his usual accuracy and
ability by the incomparable Marshall. A judgment
clearly inconsistent with other judgments rendered .
on the same day, without any opinion of the
court upon which to rest, endeavored to be
sustained by the opinions of different justices, In
irreconcilable conflict with each other. A judg
ment involving fundamental constitutional ques
tions of more vital and transcendent importance
than any hitherto determined.
"The insular cases, in the manner In which the
results vere reached, the incongruity of the re
sults, and the variety of inconsistent views ex
pressed by the different members of the court, are,
I believe, without a parallel in our judicial history.
It is unfortunate that the cases could not have been
determined with such a preponderance of consis
tent opinion as to have satisfied the profession and
the country that the conclusions were likely to be
adhered to by the court. Until some reasonable
consistency and unanimity of opinion is reached by
the court upon these questions, we can hardly ex
pect their conclusions to be final and beyond re
vision. A statement of the cases is essential to
show what was actually decided. The cases were:
De Lima vs. Bidwell, Downes vs. Bidwell, Huus vs.
New York and Porto Rico Steamship company,
Goetze vs. United States, Crossman vs. Same, and
Armstrong vs. Same.
"la De Lima vs. Bidwell the question was
whether after the cession of Porto Rico to the
United StateB, by the treaty of
.Porto Rico Paris, It remained a foreign
s Foreign country within the meaning of
Country. the tariff law, the action being
brought to recover duties col
lected prior to the passage of the Foraker act, un
der the Dingley act, which provided that 'there
' shall be levied and collected and paid upon all ar
ticles imported from foreign countries,' etc., cer
tain duties therein specified. The court held 'that
at the time these duties were levied Porto Rico
was not a foreign country within the meaning of
the tariff laws, but a territory of the United States;
that the duties were illegally exacted and that the
plaintiffs are entitled to recover them back.' 'Mr.
The Commoner.
Justice Brown delivered the opinion of the court
and with him concurred Mr. Chief Justice Fuller,
Mr. Justice Harlan, Mr. Justice Brewer and Mr.
Justice Peckham. Mr. Justice McKenna dissented,
and drew an opinion in which Mr. Justice Shiras
and Mr. Justice White concurred, and MY. Justice
Gray dissented in a short note. Downes vs. Bid
well was an action to recover duties collected under
thb Foraker act, upon 'merchandise coming into
the United States from Porto Rico,' to use the pe
culiar and somewhat ungainly language of that
act. It involved the constitutionality of that part
of the act, and five members of the court concurred
in a judgment holding that part of the act consti
tutional. Mr. Justice Brown announced the con
clusion and judgment of the court, affirming the
judgment of the court below. He did not pro
nounce its opinion, but rendered one of his own.
Mr. Justice White, with whom concurred Mr. Jus
tice Shiras and Mr. Justice McKenna, rendered an
orinion uniting in the judgment of affirmance.
Referring to Mr. Justice Brown's opinion, he stated
that the reasons which caused him to concur in
the result 'are different from, if not in conflict with
those expressed in that opinion, if its meaning by
me is not misconceived Mr. Justice Gray con
curred in substance with the opinion of Mr. Jub.
tice white, but summed up so as to 'indicate' his
'position in other cases now standing for judg
ment.' "Technically speaking, there is no opinion of
the court to sustain the judgment. Mr. Chief Jus
tice Fuller, with whom concurred MY. Justice Har
lan, Mr. Justice Brewer and Mr. Justice Peckham,
delivered a dissenting opinion, and Mr. Justice
Harlan delivered a dissenting opinion giving some
additional observations. Dooley vs. United States
was a suit to recover duties collected upon goods
exported from New York to Porto Rico, partly be
fore and partly after the ratification or the treaty,
but in every instance prior to the passage of the
Foraker act. As to the duties collected prior to the
ratification of the treaty the court were unanimous
in holding that they were legally exacted 'under
the war power.' The same justices who concurred
in the De Lima case concurred In this as to the du
ties collected after ratification. Mr. Justice Brown
delivered the opinion of the court, holding that the
'authority of the president as commander-in-chief
to exact duties upon imports from the United
States ceased with the ratification of the treaty of
peace, and her right to the free entry of goods
from the ports of the United States continued un
til congress should constitutionally legislate upon
the subject.' The justices who dissented in the De
Lima case dissented in this. Mr. Justice White
delivered the dissenting opinion. Huus vs. New
York and Porto Rico Steamship company raised
the question as to whether trade between the
United States and Porto Rico was, after the pass
age of the Foraker act, 'coasting trade,' and the
court were unanimous in holding that it was.
Goetze vs. United States and Crossman vs. Same
involved the questions determined In the De Lima
case, and were controlled by that case. Armstrong
vs. United States was controlled by the Dooley
case. Two cases argued at the same term remain
undecided. Fourteen Diamond Rings vs United
States. Rings brought from the Philippines into
the United States after the ratification of the treaty
of peace, without the payment of duty and seized
for non-payment, and Dooley vs. United States,
raising the validity of duties collected upon goods
'coming into Porto Rico from the United States' af-'
ter the passage of the Foraker act.
"In the unsettled condition of the court it is
hardly worth while to speculate as to the result
in these cases. The diamond
status r rings case no doubt depends up-
of ' on what the court holds the
Philippines. status of the Philippines to bo,
whether civil or military. If
the Dooley case is controlled by the Downes case
there would seem to be no good reason why It
should not have been decided. That it was not.
raises the Inference that it would be decided ad
versely to the government, or that there was a
greater difference of opinion than usual with refer
ence to it. Mr. Justice Gray is the only one who
indicates his 'position' in this case. In his opinion
in .the Downes case he says, after referring to du
ties 'established on merchandise and articles going
into Porto Rico from the United States, or coming
into the United States from Porto Rico,' as tem
porary: " 'The system of duties ( clearly including im
ports and exports) temporarily established by that
act during the transition period, was within the
authority of congress under the constitution of the
United States.'
"Noother member of the majority is prepared
to indicate that Porto Rico while a foreign terri
tory as to the revenue clause of the constitution,
so that imports therefrom are dutiable, is not also
foreign within the meaning of that other clause of
the constitution, relating to revenues,
which reads, 'No tax or duty shall be laid
on articles exported from any state.' The con'
verse must be true as to goods going the other
way, and they would be exports from some state
to 'such island' and hence obnoxious to this clause.
Apprehending this, perhaps, Mr. Justice White in
the same case always follows the ungainly lan
guage of the act in describing this commerce.
"Just how goods 'coming into Porto Rico from
the United States' can be other than exports from
some state we cannot well see, but with these
opinions before us It will not do to say that it will
not bo so held, and some inconsistent reasoning
given therefor. Upon this point the language of
Mr. Justice Miller in Woodruff vs. Parham, 8 Mall,
123, is suggestive:
" 'Is the- word "impost" here used intended to
confer upon congress a distinct power to levy a tax
upon all goods or merchandise carried from one
state into another? Or is the power limited to
duties on foreign imports? If the former be in
tended, then the power conferred is curiously
rendered nugatory by the subsequent clause of the
ninth section, which declares that no tax shall be
laid on articles exported from any state, for no ar
ticle can be imported from one state into another
which is not, at the same time, exported from
the former.'
"It is difficult to see how refusing to call a duty
an export duty; when it is in fact such, can
change its character.
"The Downes case is the only one that passes
upon questions that apply to permanent condi
. tions, or that attempts to furnish
The a foundation for a permanent
Downes government policy. All that is
Case. decided by that case is that as to
'merchandise coming into the
United States from Porto Rico' congress is not re
strained by the constitution In imposing a discrim
inating tariff against Porto Rico. In' other words,
as to imports from Porto Rico congress can con
stitutionally discriminate. It may be said that tho
case involves other absolute powers, but that is as
far as the case itself goes. Whether all the other
constitutional restrictions apply, and if not, which
apply, remains to be determined. Four of the ma
jority (and I Include MY. Justice Gray, as he says
that in 'substance' he agrees with the opinion of
Mr. Justice White) are evidently appalled by the
enormity of the argument that would deprive
Porto Rico of all the constitutional guarantees as
to civil rights. They repeatedly so declare in the
opinion of Mr. Justice White, as though fearful
that it might be inferred that they entertained that
view.
"It is unfortunate that Mr. Justice White, with,
his keen appreciation of the sacredness of consti
tutional rights, in order to sustain his conclusions
in this case was obliged to use a train of reason
ing that manifestly kept pressing upon him the
idea of despotic power, and thus required this con
tinual negation. It required him to 'protest too
much.' Nevertheless just what will be held 'ap
plicable provisions' we do not know, but as tho
four dissenting justices hold that tho constitution
now applies to Porto Rico to that extent, we can
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