3. That two provisions of the treaty ceding Louisiana were specially attacked on constitutional grounds-(1) that for the ultimate incorporation of the territory into the Union, and (2) that by which French and Spanish ships were accorded for twelve years an exclusive preference as to duties in the ports of the ceded territory over the ships of other foreign countries. The statutes passed to carry the treaty into effect may be taken as expressing the view of Congress that these stipulations were lawful, though discriminations as to duties could be supported only on the theory that ports of territories were not ports of States within the meaning of the Constitution. The view that the Constitution did not extend to them of its own force was exhibited in the legislation of Congress touching all the Territories carved out of the Louisiana cession. This view is consistently recognized in the legislation of Congress. Stipulations similar to those in the Louisiana treaty were afterwards incorporated into the treaty by which Florida was acquired. Discriminative clauses as to duties may also be found in the act annexing Hawaii, and in the treaty of peace with Spain."

4. That the decisions of the Supreme Court on the question of the extension of the Constitution to the territories had not been altogether harmonious; but that, eliminating expressions not necessary to the case (as in Loughborough. Blake), the following propositions might be considered as established: (1) That the District of Columbia and the territories are not States within the judicial clause of the Constitution giving jurisdiction in cases between citizens of different States;' (2) that Territories are not States within the meaning of the Revised Statutes, § 709, permitting writs of error from the Supreme Court where the validity of a State statute is drawn in question; (3) that the District of Columbia and the Territories are States, as that word is used in international treaties with respect to the ownership, disposition, and inheritance of property; (4) that the Territories are not within the clause of the Constitution providing for the creation of a Supreme Court and such inferior courts as Congress may see fit to establish; (5) that the Constitution does not apply to foreign countries or to trials therein conducted, and that Congress may lawfully provide for such trials before consular tribunals without a grand or petit jury; (6) that where territory has once become subject to the Constitution, as the District of Columbia prior to its cession by Maryland and Virginia

a Arts. 4 and 13.

Hepburn v. Ellzey, 2 Cr. 445; Barney v. Baltimore, 6 Wall. 280; Hooe v. Jamieson, 166 U. S. 395; New Orleans . Winter, 1 Wheat. 91.

Scott v. Jones, 5 How. 343; Miners' Bank v. Iowa, 12 How. 1.

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

Am. Ins. Co. v. Canter, 1 Pet. 511; Benner . Porter, 9 How. 235; Clinton v. Englebrecht, 13 Wall. 434; Good v. Martin, 95 U. S. 90, 98; McAllister v. United States, 141 U. S. 174.

f Ross' Case, 140 U. S. 453.

to the United States, or where the Constitution has once been formally extended by Congress to territories, it is fixed irrevocably, and neither Congress nor the territorial legislature can enact laws inconsistent with it."

5. That the power over the territories is vested in Congress without limitation is asserted in various cases.'

6. That the opinion of Chief Justice Taney, in Dred Scott v. Sanford, 19 How. 393, if taken at its full value, is decisive in favor of the other view; but, when he uttered his opinion on the merits, he had already disposed of the case on the ground of jurisdiction; and by subsequent events the authority of the case was seriously impaired. Moreover, the question which it involved, of the power to prohibit slavery in the territories, is so different, in its constitutional and other aspects, from that of duties, as to be scarcely analogous.

7. That, to sustain the power to levy duties, it is not necessary to show that none of the articles of the Constitution applies to Porto Rico; that some prohibitions, such as those inhibiting bills of attainder and titles of nobility, incapacitate Congress to pass a bill of that description; and that (although the point was only suggested and not decided) a distinction might in this respect be drawn between certain “natural rights," enforced in the Constitution by prohibitions against interference with them, (such as rights of religion, of individual liberty and property, of free speech and a free press, of access to the courts, of due process of law and the equal protection of the laws, and immunities such as are essential to free government,) and what may be termed artificial or remedial rights (such as citizenship and the suffrage, and particular methods of procedure).

8. That, in various statutes-e. g., act of Congress of March 27, 1804, 2 Stat. 298, and Rev. Stats. §§ 905, 906—and in the Thirteenth Amendment to the Constitution, it is implied "that there may be territories subject to the jurisdiction of the United States, which are not of the United States."

9. That the object of the various constitutional provisions requiring uniformity and forbidding discriminations in taxes and duties throughout the United States "was to protect the States which united in forming the Constitution from discriminations by Congress which would operate unfairly or injuriously upon some States and not equally upon others."

@ Loughborough r. Blake, 5 Wheat. 317; Callan r. Wilson, 127 U. S. 540; Webster r. Reid, 11 How. 437; Springville v. Thomas, 166 U. S. 707; Am. Pub. Co. v. Fisher 166 U. S. 464; 173 U. S. 343.

McCullough e. Maryland, 4 Wheat. 316, 422; Mormon Church . United States, 136 U. S. 1. of Yankton, 101 U. S. 129; Murphy e. Ramsey, C Knowlton . Moore, 178 U. S. 41.

United States v. Gratiot, 14 Pet. 526; See, also, National Bank r. County 114 U. S. 15,

10. That the "practical interpretation put by Congress upon the Constitution has been long continued and uniform to the effect that the Constitution is applicable to territories acquired by purchase or conquest only when and so far as Congress shall so direct."

11. That "the power to acquire territory by treaty implies not only the power to govern such territory, but to prescribe upon what terms the United States will receive its inhabitants, and what their status shall be."

12. On these grounds the opinion was expressed that the island of Porto Rico "is a territory appurtenant and belonging to the United States, but not a part of the United States within the revenue clauses of the Constitution; that the Foraker act is constitutional, so far as it imposes duties upon imports from such island, and that the plaintiff can not recover back the duties exacted in this case."

Mr. Justice White, with whom concurred Justices Shiras and McKenna, united in the judgment announced by Mr. Justice Brown, but for reasons" different from, if not in conflict with, those expressed" by the latter. The grounds maintained by Mr. Justice White were as follows:

C

1. That it should at the outset be conceded (1) that, as the Government of the United States was born of the Constitution, all its powers must be derived, either expressly or by implication, from that instrument; (2) that consequently the Constitution is everywhere and at all times potential in so far as its provisions are applicable;" (3) that, wherever a power is given and a limitation imposed upon it, the restriction "operates upon and confines every action on the subject within its constitutional limits;" (4) that, where the Constitution applies, its controlling interest can not be frustrated by the action of any or all of the departments of the Government; (5) that the Constitution has conferred on Congress the right to create such municipal organizations as it may deem best for all the territories of the United States, but that, even where no express limitation may be applicable, there may be restrictions of so fundamental a nature that, although not expressed in words, they can not be transgressed; (6) that as Congress, in governing the territories, is subject to the Constitution, all its applicable provisions are, as held even by the dissenting judges in

@Marbury . Madison, 1 Cranch, 176; Martin. Hunter, 1 Wheat. 326; New Orleans v. United States, 10 Pet. 662, 736; Geofroy v. Riggs, 133 U. S. 258, 266; United States v. Gettysburg Electric Ry., 160 U. S. 668, 679, and cases cited.

The City of Panama, 101 U. S. 453, 460; Fong Yue Ting v. United States, 149 U. S. 716, 738.

Monongahela Navigation Co. v. United States, 148 U. S. 312, 336; Interstate Commerce Commission v. Brimson, 154 U. S. 447, 479; United States v. Joint Traffic Association, 171 U. S. 571.

d United States v. Kagama, 118 U. S. 375, 378; Shively e. Bowlby, 152 U. S. 1, 48. H. Doc. 551-21

66

the Dred Scott case," controlling therein; (7) that in every case, when a constitutional provision is invoked, the question is, not whether the Constitution is operative, which is self-evident, but whether the particular provision is applicable; (8) that the clauses empowering Congress to lay and collect taxes, duties, imposts, and excises," and requiring uniformity throughout the United States, although they do not relate to or restrain the power of Congress to levy local taxes for local purposes within the territories, restrain Congress from imposing duties on goods coming into the United States from a territory which has been incorporated into and forms a part thereof."

2. That the determination whether a particular provision is applicable involves, generally speaking, an inquiry into the situation of the territory and its relations to the United States; e. g., it has been held, even in the case of incorporated territories, that, while the provision as to the life tenure of judges is inapplicable, the provision as to common law juries is operative, although the latter provision has been held inapplicable in consular courts.

3. That a distinction exists between restrictions which regulate a granted power and those which withdraw all authority, and that the "absolute withdrawals of power which the Constitution has made in favor of human liberty are applicable to every condition or status."

4. That the sole issue therefore was whether the tax in question was levied in violation of the Constitution; and this depended upon whether Porto Rico had, when the act was passed, "been incorporated into and become an integral part of the United States."

5. That every government which is sovereign within its sphere of action possesses the inherent power to acquire territory by discovery, treaty, or conquest, and "that, under the Constitution, the Government of the United States, in virtue of its sovereignty, supreme within. the sphere of its delegated power, has the full right to acquire territory enjoyed by every other sovereign nation.”ƒ

a 19 How. 393, 542, 614. Loughborough . Blake, 5 Wheat. 317, 322; Woodruff v. Parham, 8 Wall. 123, 133; Brown e. Houston, 114 U. S. 622, 628; Fairbank r. United States, 181 U. S. 283. с American Ins. Co. v. Canter, 1 Pet. 511; Benner v. Porter, 9 How. 235; Webster v. Reid, 11 How. 437, 460; Clinton . Englebrecht, 13 Wall. 434; Reynolds v. United States, 98 U. S. 145; Callan r. Wilson, 127 U. S. 540; McAllister v. United States, 141 U. S. 174; Springville r. Thomas, 166 U. S. 707; Baumann . Ross, 167 U. S. 548; Thompson r. Utah, 170 U. S. 343; Capital Traction Co. v. Hof, 174 U. S. 1; Black v. Jackson, 177 U. S. 363.

d In re Ross, 140 U. S. 453, 461, 462, 463.

€ 20 Congressional Globe, Appendix, 272, 281–282; Stanwood, History of the Presidency, 218, 253, 254, 271; Chicago, Rock Island, &c., R. R. Co. v. McGlinn, 114 U. S. 542, 546.

ƒ Halleck, International Law, 76, 126, 814; American Ins. Co. v. Canter, 1 Pet. 511; United States v. Huckabee, 16 Wall. 414, 434; Mormon Church v. United States, 13 U. S. 1; Shively r. Bowlby, 152 U. S. 50; 26 Stat. 1497.

6. That, by the general principles of the law of nations, acquired territory, in the absence of an agreement to the contrary, will bear such relation to the acquiring government as may be by it determined, that this power is "absolutely inherent in and essential to national existence," that it belongs to the United States under the Constitution, and that it may be exercised by Congress in time of peace as well as by the military arm in time of war.“

7. That the theory that the treaty-making power can not acquire territory conditionally is refuted by the history of the United States from the beginning.

8. That, when the Constitution was adopted, the United States consisted, both in the international and the domestic sense, of States and territories whose native white inhabitants were endowed with citizenship and possessed various common rights and privileges; that the opinion which prevailed in the Louisiana cession was, that, although the treaty might stipulate for incorporation and citizenship under the Constitution, such agreements were but promises, depending for their fulfillment on the future action of Congress; that a similar view prevailed in the acquisition of Florida; that the rule acted upon in the case of the Mexican territory was that, where the treaty in express terms brought the territory within the boundary of the United States and provided for incorporation, and the treaty was expressly or impliedly recognized by Congress, its provisions ought to be given immediate effect; that the same rule was acted upon in the case of Alaska, the treaty of cession containing, among other things, an express provision excluding from citizenship the uncivilized native tribes; and that the Thirteenth Amendment, which speaks of "the United States, or any place subject to their jurisdiction," obviously recognizes that there may be places subject to the jurisdiction of the United States which are not incorporated into it.

9. That it is indubitably settled by the principles of the law of nations, by the nature of the government created by the Constitution, by the express and implied powers conferred upon that government, by the mode in which those powers have been exercised, and by an unbroken line of judicial decisions, that the treaty-making power can not incorporate territory into the United States without the express or implied assent of Congress; that it may insert in a treaty conditions against immediate incorporation, although, when the treaty contains conditions favorable to incorporation, they will, if the treaty be not repudiated by Congress, have the force of a law of the land and by their fulfillment cause incorporation to result.

a Johnson v. McIntosh, 8 Wheat. 543, 595; Martin v. Waddell, 16 Peters, 367, 409; Jones . United States, 137 U. S. 202, 212; Shively v. Bowlby, 152 U. S. 1, 50; Fleming v. Page, 9 How. 603; Cross v. Harrison, 16 How. 164.