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The Commoner.
that the question of annexing these territories wag
made a subject of debate. The difficulties of bring
ing about a union of the states was so great, the
objections to it seemed so formidable, that tho
whole thought of tho convention centered upon
surmounting these obstacles. The question of
territories was dismissed with a single clause,
apparently applicable only to the territories then
existing, giving congress the power to govern and
dispose of them.
"Had the acquisition of other territories been
contemplated as a possibility, could it have been
foreseen that within little more than one hundred
years wo were destined to acquire not only tho
whole vast region between the Atlantic and Pacific
oceans, but the Russian possessions in America
and distant islands in the Pacific, it Is inoredible
that no provision should have been made for them,
and the question whether the constitution should
or should not extend to them have been .definitely
settled. If it be once conceded that we are at
liberty to acquire foreign territory, a presumption
arises that our power with respect to such terrir
tories is the same power which other nations have
been accustomed to exercise with respect to terri
tories acquired by them. If in limiting the power
which congress was to exercise within the United
States it was also intended to limit it with regard
to such territories as the people of the United
States should thereafter acquire, such limitations
should have been expressed. Instead of that, we
find the constitution speaking only to states, ex
cept in the territorial clause, which' is absolute in
its terms and suggestive of no limitations upon
the power of congress in dealing with them.
POWER TO ACQUIRE NOT HAMPERED.
"The states could only delegate to congress
such powers as they themselves possessed, and
as they had no power to acquire new territory
they had none to delegate in that connection. The
logical inference from this is that if congress had
power to acquire new territory, which is conceded,
that power was not hampered by the constitu
tional provisions. If, upon the other hand, we as
sume that the territorial clause of the" constitution
was not intended to bo restricted to such ter
ritory as the United States then possessed, there
is nothing in the constitution to indicate that
the power of congress in dealing with them was
intended. to be restricted by any of the other
provisions.- - v
"There is a provision that 'now states may
be admitted by the congress into this union.'
These words, of course, carry the constitution
with them, but nothing is said regarding the ac
quisition of new territories or the extension, of the
constitution over them. Tho liberality of con
gress in legislating the constitution into all our
contiguous territories has undoubtedly fostered
the impression that it wont there by its own
force, but there is nothing in the constitution it
self, and little in the interpretation put upon it,
to confirm that impression. There is not oven an
analogy to tho provisions of an ordinary mort
gage for its attachment to after-acquired property,
without which it covers only property existing
at the date of the mortgage. In short, there is
absolute silence upon the subject. The executive
and legislative departments of the government
have for more than a century interpreted this
silence as precluding the idea that tho constitution
attached to these territories as soon as acquired,
and unless such interpretation be manifestly con
trary to the letter or spirit of tho constitution, it
should be followed by the judicial department.
VITAL TO COUNTRY'S DEVELOPMENT.
"Patriotic and intelligent men may differ wide
ly as to the desirableness of this or that acquisi
tion, but this is solely a political question. We
can only consider this aspect of the case so far as
to say that no construction of the constitution
should be adopted which would prevent congress
from considering each case upon its merits, unless
the language of the instrument imperatively de
mand it. A false step at this time might be fatal
to the development of what Chief Justice Marshall
called the American empire. Choice in some cases,
the natural gravitation of small bodies toward
large ones in others, the result of a successful
war in still others, may bring about Conditions
which would render tho annexation of distant
possessions desirable. If those possessions are in
habited by alien races, differing from us in re
ligion, customs, laws, methods of taxation and
modes of thought, the administration of govern
ment and justice, according .to Anglo-Saxon prin
ciples, may for a time be impossible; and the
question at once arises whether large conces
sions ought not to be made for a time, that, ulti
mately, our own theories may be carried out and
the blessings of a free government under the
constitution extended to them. Wo decline to
hold that there is anything In the constitution to
forbid such action,
"We are therefore of opinion that tho island
of Porto Rico is a territory appurtenant and be
longing to tho United States, but not a part of tho
United States within the revenue olause of tho
constitution; that tho Foralcer act Is constitu
tional, so far as it imposes duties upon imports
from such island, and that tho plaintiff cannot
recover back the duties exacted In this case.
"Tho judgment of tho circuit court is there
fore affirmed.'
Justice White's Opinion.
The Washington Post thus reports the sep
arate opinion read by Justice White:
Justico White read an opinion showing ho
stood with Justico Brown in holding that con
gress had power to levy taxes on an Insular pos
session like Porto Rico distinct from tho taxes
that apply in tho country generally, and that tho
Foraker act, revenue clauses and all, was valid.
His process of reasoning was distinctly different
from that of Justico Brown. Justice Gray read a
separato opinion, which was very brief, reaching
the same conclusion. Justice Shiras and Justico
McKenna concurred with the opinion of Justico
White.
Justice White began with the statement that
while he regarded the duty complained of as val
idly Imposed, and therefore he concurred in tho
decree confirming tho judgment, he did so upon
grounds which were not only different from but
in conflict with thoso expressed by Justice Brown,
and he would state his reasons. After remarking
that the question was whether tho provisions of
the Foraker act imposing duties on goods coming
from Porto Rico into the United States conformed
to the constitution, he said that tho provision of
the constitution which was involved was that
giving congress the power to lay duties, imposts,
and excises, and requiring that they should be
uniform "throughout the United States." There
were questions which had been argued on both
sides of tho case which the justice thought were
too clear to require elaboration, and he would
put them out of tho case by at once conceding
them and referring to the authorities by which
they were rest3rbHshed These propositions eight
in number -were announced. They held that tho
government of the United States being created by
the constitution, that instrument, where it limits
the power of the government, does so everywhere
wherever its authority is exerted. The proposi
tions, therefore, in effect, maintain that the theory
that the constitution does not follow tho flag is
unjustifiable. The opinion then states there never
can be any serious question, when the govern
ment of tho United States exercises an authority
which tho constitution confers, that the applica
ble limitations of tho .constitution control it.
While this was true universally, in every caso
the question was not whether tho constitution
followed the flag, but granting that it did so,
what provision was applicable to particular cases.
The territorities, it was said, whatever be their
relation to the United States, were, of course, con
trolled by the constitution. That congress had
bj the constitution power to govern them as to
it in its discretion might seem best, to give them
representative government if it pleased and to
deny it. This statement was sustained by many
authorities, which were referred to, and was illus
trated by the present condition of the District of
Columbia. When governing locally for the ter
ritories, it was said that congress, in accordance
with the constitution, had the power to assess
local taxes in its' discretion, but that, in assessing
national taxes congress was limited by the pro
visions of the constitution as to imposts and ex
cises and by the uniformity restriction.
MR. WEBSTER QUOTED.
In discussing the question of tho applicability
of the constitution in tho territories, it was said
that this was shown by the history of tho govern
ment. The opinion of Mr. Webster was quoted
to establish that, although in a broad sense he
claimed that the constitution did not extend to
the territories, he yet admitted that the applicable
provisions of the constitution did so, and reference
was made to the various platforms of tho freo soil
and republican parties, Including the one upon
which Mr. Lincoln was nominated, which, it was
said, showed clearly that it was conceded that tho
applicable provisions of tho constitution were in
force in the territories. Tho opinion then went
on to say that in every case, therefore, in tho
states as well as the territories, the question to
be determined when the constitution was In
voked was the applicability of the particular pro
vision which was relied upon. It was said t.is was
the general rule, but there were some cases vhich
were an exception, because there were certain
general limitations in the constitution in favor
of liberty and property which withdrew all power
from congress, and, of course, such limitations
were everywhere applicable and could never be
transgressed. Besides, ho said, even in a caso
whoro there were no express limitations In tho
constitution operating upon congress in governing
tho territories locally, nevertheless thoso funda
mental conceptions which lay at tho basis of all
freo government would control congress in so
legislating, and authorities were referred Co on
this subject. Citing instances showing tho. appli
cability of the constitution to different conditions,
it was said that although federal judges wero
obliged by tho constitution to havo a life tenure,
such provision had been decided not to bo npplica
bio in tho territories, because of the temporary
nature of their judicial system. That, on the other
hand, tho provisions as to juries had been hold to
be applicable in the incorporated territories, and
yet again, the jury provisions had been decided
not to bo applicable to consular courts of tho
United States sitting in certain foreign countries,
as provided by treaties.
RIGHT OF CONGRESS TO GOVERN.
The eight provisions above referred to wero" re
sumod by tho following statement:
There is in reason, then, no room In this caso
to contend that congress can destroy tho liberties
of tho people of Porto Rico by oxercislng in
their regard powers against freedom and Justico
which tho constitution has absolutely denied.
There can also bo no controversy us to tho right
of congress to locally govern tho island of Porto
Rico as its wisdom may decide, and in so doing
to accord only such degree of representative gov
ernment as may be determined on by that body.
There can also be no contention as to tho author
ity of congress to levy such local taxes in Porto
Rico as It may choose, ovon although the amount
of tho local burden so levied bo manifold moro
onero.us than is the duty with which this case is
concerned. But as the duty In question was not a
local tax, since It was levied in the United States
on goods coming from Porto Rico, it follows that
if that island was a part of tho United States, the
duty was repugnant to the constitution, since tho
authority to levy an impost duty conferred by the
constitution on congress does not, as I have con
ceded, include the right to lay such a burden on
goods coming from one to another part of tho
United States. And, besides, it Porto Rico was a
part of tho United States, the exaction was re
pugnant to tho uniformity chiuse.
The sole and only issue, then, Is not whether
congress has taxed Porto Rico without represen
tation for whether the tax was local or national,
it could havo been Imposed, although Porto Rico
had no representative local government and was
not represented In congress but is, whether tho
particular tax in question was levied In such form
as to cause It to be repugnant to tho constitution.
This is to be resolved by answering the inquiry,
Had Porto Rico, at tho time of the passage of the
act "in question, been incorporated into and be
come an Integral part of the United States?
PRINCIPLE OF INTERNATIONAL LAW.
Coming to consider this question, It was af
firmed that the general principle of international
law was that a country, sovereign within the lim
its of its powers, had the right to acquire terri
tory by discovery, by agreement, and by conquest,
and that the general rule also was that when a
country was acquired by either of these methods
the relation which it would bear to the acquiring
country in the absence of treaty stipulations was
to be determined by that country conformably
to its institutions. Many international law writ
ers and decisions are referred to as sustaining
this theory. It is then declared that the United
States, In virtue of its sovereignty, possesses the
same powers on this subject that any other coun
try in the family of nations enjoys. To support
this the Declaration of Independence, the Articled
of the Confederation which preceded the consti
tution, and the constitution itself, as well as many
decisions of the court, were noticed. The asser
tion is made that the history of the United States
from tho beginning had manifested that this pow
er was possessed by the United States. In this
connection the justice id:
"Indeed, it is superfluous to cite authorities
establishing the right of tho covernment of tho
United States to acquire territory, in view of the
possession of the northwest territory when the
constitution was framed and the cessions to the
general government by various states subsequent
to .the adoption of the con titution, and in view,
also, of the vast extension of the territory of tho
United States brought about since the existence of
the constitution by substantially every form of ac
quisition known to the law of nations. Thus, in
part at least, 'the title of tho United States to Ore
gon was founded upon original discovery and
actual settlement of citizens of the United States,
authorized or approved' by the government of tho
United States.' (Shively vs. Bowlby, 152 U. S.,
50.) Tho province of Louisiana was ceded by
France in 1803; the Floridas were transferred by
Spain in 1819; Texas was admitted Into tho union
by compact with" congress in 1845; California and
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