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that the acquired territory has reached that state
where it is proper that it should enter into and
form a part of the American family. Does, then,
the treaty in question contain a provision for in
corporation, or does it, on the contrary, stipulate
that incorporation shall not take place from the
mere effect of the treaty and until congress has so
determined? is then the only question remaining
for consideration."
The only question, then, to be determined, the
opinion says, is: Did the treaty incorporate? At
tention was called to the fact that it expressly
provided differing from any treaty which had
ever been executed before since the foundation of
the government that the civil rights and political
status of the inhabitants of the islands should bo
determined by congress, and it was said, of course,
tho recognition of .this treaty by congres? could
not give greater rights than the treaty itself gave.
The Foralcer act was then referred to, and atten
tion was called to the fact that a clause in the bill
as reported conferring citizenship was expressly,
stricken jaut before it was passed.
The "summing up is as follows:
"In what has preceded I have, in effect, con
sidered every substantial proposition, and havo
either conceded or reviewed every authority re
ferred to as establishing that immediate incorpora
tion resulted from the treaty of cession which is
under consideration. Indeed, the whole argument
in favor of the view that immediate incorporation
followed upon the ratification of the treaty, in its
last analysis, necessarily comes to this: Since it
has been decided that incorporation flows from a
treaty which provides for tnat result, when its pro
visions have been expressly or impliedly approved
by congress, it must follow that the same effect
flows from a treaty which expressly stipulates to
the contrary, even although the condition to that
end has been approved by congress. That is to say,
the argument is thus: Becnuse a provision for in
corporation when ratified incorporates, therefore a
provision against incorporation must also produce
the very consequence which It expressly provides
against.
FOREIGN IN A DOMESTIC SENSE.
"Tho result of what has been said is that
whilst, in an international sense, Porto Rico was
not a foreign country, since it was subject to the
sovereignty of and was owned' by the United
States, it was foreign to the United- States in a do
mestic sense, because the island had not been in
corporated into the United States, but was merely
appurtenant thereto as a possession, As a neces
sary consequence, the impost in question assessed
on. merchandise coming from Porto Rico into the
United States after the cession was within tho
power of congress, and that body was not, more
over, as to such impost, controlled by the clause
requiring that imposts should be uniform through
out the United States; In other words, tho provi
sion of the constitution just deferred to was not
applicable to congress In legislating for Porto
Rico."
In concluding, it was said, that the question
when territory was to be incorporated, that is,
made a part of the United States, by conferring
upon it the benefits and advantages of American
citizenship, was a politcal question, to bo deter
mined by the American people, speaking through
congress; and, that, whatever might be the opin
ions as to the dangers to arise from acquiring new
teiritory, those dangers, even if they be conceded,
would not justify the judiciary in usurping the
political powers of the government. It was, more
over, said that even if the courts would forget
tne-ir duty and usurp to themselves political power,
no good would come from it, because the court
had recently decided unanimously in the Neely
case; that, although Cuba had come under tho
control and administration of the United States,
and, therefore, under its sovereignty, that it was
not a part of tho United States, because of tho
promises and pledges of the United States, not
contained in the treaty, but declared by congress
before the war with Spain, That this decision
recognized the right of the United States to hold
and possess territory, where the treaty provided
for a mere relinquishment of sovereignty In favor
cf the United States, and, therefore, if the judiciary
were to assume to exercise the political powers of
tiie government, the only result would be that as a
cession could not be made in the future without
parting with the birthright of the American people
without their consent, relinquishment of sover
eignty would be resorted to, to accomplish indirect
ly the end of holding the territory without destroy
ing the rights of American citizens.
Minority Opinion.
(Delivered by Chief Justice Fuller, Justices
Peckhara. . and Brewer concurring Justice
Harlan concurred in the conclusions reached
The Commoner.
by the minority but read a separate opinion.)
Chief Justice Fuller said:
"The inquiry Is whether the act of April 12,
1900, so far as it requires tho payment of import
duties on merchandise brought from a port of Por
to Rico as a condition of entry into other ports of
the United States, is consistent with the federal
constitution.
"The act creates a civil government for Porto
Rico, with a governor, secretary, attorney general,
and other officers appointed by the president, by
and with the advice and consent of tho senate, who,
together with five other persons, likewise so ap
pointed and confirmed, are constituted an executive
council; local legislative powers are vested in a
legislative assembly, consisting of tho executive
council and a house of delegates to be elected;
courts are provided for, and, among other things,
Porto Rico is constituted a judicial district, with
a district judge, attorney, and marshal, to be ap
pointed by the president for the term of four
years. All officials authorized by the act are re
quired to 'before entering upon the duties of their
respective offices take an oath to support the con
stitution of the United States and the laws of Porto
Rico.'
GEOGRAPHICAL UNIFORMITY REQUIRED.
"The uniformity of taxation required by tho
constitution is a geographical uniformity, and is
only attained when the tax operates with the same
force and effect in every place where the subject
of it is found. But it is said that congress in at
tempting to levy these duties, was not exercising
power derived from the first clause of section 8, or
restricted by It, because In dealing with tho terri
tories, congress exercises unlimited powers of gov
ernment, and, moreover, that these duties are
merely local taxes."
The chief justice referred at this point to the
case of Loughborough vs. Blake and to Chief Jus
tice Marshall's opinion, delivered thereon in 1820,
and added:
"It is said in one of the opinions of the ma
jority that the chief justice 'made certain observa
tions which have occasioned some embarrassment
in other cases' I agree that the opinion of the
court delivered by him must be embarrassing in
thfs case, for it is necessary to overrule that de
cision in order to reach the result herein an
nounced. "It is wholly inadmlssiblo to reject the process
of reasoning by which the chief justice reached and
tested the soundness of his conclusion as merely
obiter. Nor is there any intimation that the ruling
turned on the singular theory that the constitution
iirevocably adhered to the soil of Maryland and
Virginia, and, therefore, accompanied the parts
which were ceded to form the District, or that 'tho
tie' between those states and the constitution 'could
not be dissolved without at least the consent of
the federal and state governments to a formal sep
aration; and that this was not given by the ces
sion and Its acceptance in accordance with tho
constitutional provision itself, and hence that con
gress was restricted in the exercise of its powers
in the District, while not so in the teritories.
PURPOSES OF NATIONAL TAXATION.
"On the contrary, the chief justice held tho
territories as well as tho District to be part of
tho United States for the purposes of national tax
ation, and repeated in effect what he had already
said in McCulloch vs. Maryland: 'Throughout this
vast republic, from the St. Croix to the Gulf of
Mexico, from the Atlantic to the Pacific, revenue
is to be collected and expended, armies are to bo
marched and supported.''
"Conceding that the power to tax for the pur
pose of territorial government is implied from tho
power to govern territory, whether the latter power
is attributed to the power to acquire or the power
to make needful rules and regulations, these par
ticular duties are nevertheless not local in their
nature, but are imposed as In the exercise of na
tional powers. The levy is clearly a regulation of
commerce, and a regulation affecting the states
and their people as well as this territory and its
people.- The power of congress to act directly on
the rights and interests of the people of tho states
can only exist if and as granted by the constitu
tion. And by the constitution congress Is vested
with power 'to regulate commerce with foreign na
tions, and among the several states, and with the
Indian tribes.' Tho territories are, Indeed, not
mentioned by name, and yet commerce between
the territories and foreign nations Is covered by
tho clause, which would seem to have been in
tended to embrace the entire internal as well as
foreign commerce of the country.
REGULATION OF COMMERCE.
"It is evident that congress cannot regulate
commerce between a territory and the states and
other territories in tho exercise of the bare power
to govern the particular .territory, and as this act
was framed to operate and does operate on the
pcoplo of the states, tho power to so legislate Is
apparently rested on the assumption that the right
to regulato commcrco between tho states and ter
ritories comes within tne commcrco clause by nec
essary implication.
"Accordingly, tho act of congress of August 8,
3800, entitled 'An act to limit the effect of the reg
ulations of commerce between the several states
and with foreign countries In certain cases,' ap
plied in terms to the territories as well as to the
states. In any point of view, the imposition of du
ties on commerce operates to regulate commerce,
and Is not a matter of local legislation; and it
follows that tho levy of theso duties was In the
exercise of the national power to do so, and sub
ject to tho requirement of geographical uniformity.
"Tho fact that the proceeds of theso duties are
devoted by tho act to tne use of the territory docs
not make national taxes local. Nobody disputes
the power of congress to lay and collect duties,
geographically uniform, and apply tho proceeds
by a proper appropriation act to tho relief of a
particular territory, but tho destination of the
proceeds would not change the source of the power
to lay and collect. And that suggestion certainly
is not strengthened when based on tho diversion of
duties collected from all parts of tho United States
to a territorial treasury before reaching the treas
ury of the United States. Clause 7 of section I) of
Article I. provides that 'no money shall be drawn
from tho treasury but in consequence of appropria
tions made by law, and the pioposltion that this
may be rendered inapplicable If the money is not
permitted to be paid in so as to be susceptible of
being drawn out is somewhat startling.
APPLIES TO TERRITORIES AND STATES.
"Other parts of tho constitution furnish illus
trations of tho correctness of this view. Thus the
constitution vests congress with the power 'to es
tablish an uniform rule of naturalizations, and uni
form laws on the Subject of bankruptcies through
out tho United States.' This applies to tho terri
tories as well as the states, and has always been
recognized in legislation as binding.
"Aliens in the territories are made citizens of
tho United States, and bankrupts residing in the
territories are discharged from debts owing citizens
of tho states pursuant to uniform rules and laws
enacted by congress in tho exercise of this power.
"The fourteenth amendment provides that 'all
persons born or naturalized in the United States,
and subject to the jurisdiction thereof, are citizens
of tho United States and of the states wherein they
reside.'
"No person Is eligible to tho office of president
unless he has 'attained to the age of thirty-five
years and been fourteen years a resident within the
United States.' (Clause 5, sect. 1, Art. II.)
"Would a native-born citizen of Massachusetts
be ineligible if he had taken up his residence and
resided in one of the territories for so many years
that he had not resided altogether fourteen years
in tho states? When voted for he must be a citizen
of one of the states (clause 3, sect. 1, Art. II.; Art.
XII.), but as to length of time must residence in
the territories bo counted against him?
"Tho fifteenth amendment declares that 'the
right of citizens of tho United States to vote shall
not be denied or abridged by tho United States or
by any state on account of race, color, or previous
condition of servitude.' Where does that prohibi
tion on the United States especially apply if not
in the territories?
NO SLAVERY IN TERRITORIES.
"The thirteenth amendment says that neither
slavery nor involuntary servitude 'shall exist with
in the United States or any place subject to their
jurisdiction.' Clearly this prohibition would havo
operated in the territories if the concluding words
had not been added. The history of the time's
shows that that addition was made in view of the
then condition of the country the amendment
passed the house January 31, 18C5 and, generally
speaking, when words are used simply out of
abundant caution, the fact carries little weight.
"From Marbury vs. Madison to the present
day, no utterance of this court has intimated a
doubt that in its operation on the people, by whom
and for whom it was established, the national gov
ernment is a government of enumerated powers,
tho exercise of which is restricted to the use of
means appropriate and plainly adapted to consti
tutional ends, and which are 'not prohibited, but
consistent with the letter and spirit of the constitu
tion.' "Tho powers delegated by the people to their
agents are not enlarged bythe expansion of the
domain within which theyare exercised. When
the restriction on the exercises of a particular
power by a particular agent is ascertained, that
is an end of the question.
"To hold otherwise is to overthrow the basis
of our constitutional law, and moreover, in effect,
to reassert the proposition that the states and not
tho people created tho government.
"The power of the United States to acquire
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