The Secretary of War has stated:

"The people of the ceded islands have acquired a moral right to be treated by the United States in accordance with the underlying principles of justice and freedom which we have declared in our Constitution and which are the essential safeguards of every individual against the powers of government; not because these provisions were enacted for them, but because they are essential limitations inherent to the existence of the American Government." (Annual Report for 1899, page 26.)

Senator Foraker, in recommending the bill for the government of Porto Rico, says:

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"As to all prohibitions of the Constitution laid upon Congress while legislating, they operate for the benefit of all for whom Congress may legislate, no matter where they may be situated. This is so because the Congress in all that it does is subject to and governed by those restraints and prohibitions. These limitations are placed upon the exercise of the legislative power without regard to the place or the people for whom the legislation in a given case may be intended; and for this reason they enure to the benefit of all for whom Congress may undertake to legislate, without regard to whether the provisions of the Constitution, as such, have been extended to them. *Con

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gress can not deny them." (Senate committee report No. 249, Feby. 6, 1900, on bill for temporary civil government for Porto Rico.)

Pomeroy, in his Constitutional Law, § 492, says:

"The safeguards of individual rights-those clauses which preserve the lives, liberty, and property of the citizens from the encroachments of arbitrary power-must apply as well to that legislation of Congress which is concerned exclusively with the District of Columbia or with the Territories as to that which is concerned with the States."

Webster says:

"I do not say that while we sit here to make laws for these Territories we are not bound by every one of the great principles which are intended as securities for public liberty, but they do not exist in the Territories until they are introduced by authority of Congress." (Curtis's Life, Volume II, 366.)

On the 23rd of March, 1848, he said in the Senate:

"Arbitrary governments may have territories and distant possessions, because arbitrary governments may rule them by differ ent laws and different systems. Russia may rule in the Ukraine provinces of the Caucasus and Kamchatka by different codes, ordinances, or ukases. We can do no such thing. They must be of us-part of us—or else strangers.

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the Constitution.

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"I think I see that in progress which will disfigure and deform * I think I see a course adopted that is likely to turn the Constitution under which we live into a deformed monster-into a curse rather than a blessing-in fact, a frame of an unequal government, not founded on popular representation,

not founded on equality, but founded on the grossest inequality; and, I think, that this process will go on, or that there is danger that it will go on, until this Union shall fall to pieces." (Works, Vol. 300.)

This court has said:

"The people of the United States, as the sovereign owners of the national Territories, have supreme power over them and their inhabitants. In the exercise of this sovereign dominion they are represented by the Government of the United States, to whom all the powers of government over that subject have been delegated, subject only to such restrictions as are expressed in the Constitution, or are necessarily implied in its terms, or in the purpose and objects of the power itself; for it may well be admitted in respect to this, as to every power of society over its members, that it is not absolute and unlimited. * * * The personal and the civil rights of the inhabitants of the Territories are secured to them, as to other citizens, by the principles of constitutional liberty, which restrain all the agencies of government, State and national; their political rights are franchises which they hold as privileges in the legislative discretion of the Congress of the United States. This doctrine was fully and forcibly declared by the Chief Justice, delivering the opinion of the court in National Bank v. County of Yankton, 101 U. S., 129.__ See also American Insurance Company v. Canter, 1 Pet., 517; U. S. v. Gratiot,, 14 Pet., 526; Cross v. Harrison, 16 How., 164; Dred Scott v. Sandford, 19 How., 393." (Murphy v. Ramsey, 114 U. S., 44.)

"Doubtless Congress, in legislating for the Territories, would be subject to fundamental limitations in favor of personal rights which are formulated in the Constitution and its amendments, but these limitations would exist rather by inference and the general spirit of the Constitution, from which Congress derives all its powers, than by any express and direct application of its provisions.

(Mormon Church v. U. S., 136 U. S., 1-67.)

These words were repeated with approval by Mr. Justice Harlan in McAllister v. U. S., 141 U. S., 188, and the same principle again affirmed in U. S. v. Kagma, 118 U. S., 390; Callan v. Wilson, 127 U. S., 550; and finally, completely and irrevocably in the opinion of Mr. Justice Harlan in Thompson v. Utah, 170 U. S., 346.

The controversy, therefore, narrows itself to the question whether "the particular thing here complained of "-the imposition of duties on the products of Porto Rico-is obnoxious to any limitation in the Constitution.

If so, it being conceded that these limitations apply to every action of Congress, the act of April 12, 1900, imposing duties on the products of Porto Rico must be held invalid.

We have seen under Point I that Porto Rico is no longer a foreign country; it remains to be seen whether it is embraced in the broad term used in Article I, § 8, of the Constitution: "throughout the United States."

That it is a part of the United States in the sense in which that term includes what Chief Justice Marshall has called the American empire,

there can be no doubt; so that the question is again narrowed to the meaning of the expression "United States" in the clause of the Constitution which we are considering.

In approaching the determination of this question we must determine whether a narrow or a broad interpretation shall be given to those clauses of the Constitution which are meant for the protection of life, liberty, and property.

To this it seems that there should be but one answer. The Constitution was not a criminal statute, but the greatest"enabling act" of modern times; its protective scope should never be restricted. Protection of all civil rights was its paramount purpose, and it becomes the duty of the court to put that purpose into execution by such an interpretation as will aid and not hamper it. The purpose of the clause in question was manifestly to deprive the governmental authorities of that power of oppression which could be exercised through inequality in taxation. Inequality was an injustice against which every part of the nation was to be protected.

"For all the great purposes for which the Federal Government was formed, we are one people, with one common country."

"We are all citizens of the United States, and as members of the same community must have the right to pass and repass through every part of it without interruption as freely as in our own State."

This is the language of this court in Crandall v. Nevada, 5 Wall.. 49. Was this right reserved solely to the citizens of the original States or of the present States? Should not this be the privilege of an inhabitant of the unorganized district of Alaska?

The freedom of personal transit is no more valuable than the right to carry or convey property throughout the length and breadth of the domain, and the one can no more rightfully be denied than the other.

It has been suggested that this protection against inequality in the imposition of duties was restricted to the State and was the result of mutual State jealousies. At the time of the adoption of the Constitution a number of States claimed the ownership of vast tracts forming part of the various colonies. These tracts were ceded by the various claimants to the General Government as the Northwest Territory, under a compact which provided for the formation of States out of that Territory. Thus the existence of territory to be governed by the Federal authorities was already in contemplation, and the formation of States out of that Territory. Is it conceivable that the States and the people of the States-so jealous of the imposition of taxes-should have combined to protect each other from the encroachments of the Federal Government and been willing to hold the vast territory in ques tion with a view to subjecting it to that inequality in taxation which they deprecated in their own case?

Inconceivable as such a thing is, it is the only ground upon which the term "United States" in the clause under discussion can be so dwarfed and belittled as to exclude from its application the entire domain of the new nation.

If this outlying and unorganized territory was not a part of the United States with reference to this limitation, it was equally outside of the pale of all those other protective restrictions which the voice of

publicists and courts has been unanimous in applying to them. As observed by Pomeroy in his Constitutional Law, § 492:

“If it were thought necessary that Congress should be hedged around with restrictions while it is legislating for the inhabitants of the States, who may be partially protected by their local governments, how much more necessary that the same body should be restrained while legislating for the inhabitants of those districts and territories over which it has an exclusive control and undivided sway."

Moreover, it seems evident that the term United States in the clause in question was meant in a geographical sense, as embracing the entire domain of the nation. This is the conclusion arrived at by this court in Knowlton v. Moore, 178 U. S., 176. The words "uniform throughout the United States" do not signify an intrinsic but simply a geographical uniformity. That the Territories are part of the United States in a geographical sense was already held in Elk v. Wilkins, 112 U. S., 99-102-110-122; in the Cherokee Nation, 5 Pet., 15-17, and in the Cherokee Tobacco, 11 Wall., 619. In the Dred Scott case both Curtis, J., and Campbell, J., referred to Congress as the Legislature of the United States, "of which these Territories make a part." (19 How., 513-14, 623.)

A like question arises in regard to the clause which gives Congress sole authority to pass naturalization laws throughout the United States. Surely it was not intended to deprive the alien inhabitants of the Northwest of the privilege of naturalization. The earliest legislative provisions under this grant included the Territories.

Again, the question arises, in reference to the eligibility of a citizen to the Presidency of the United States. He must be a native citizen of the United States and fourteen years a resident of the United States. (Article II, sec. 1, clause 5.) Will it be seriously contended that a native of New York who has removed to New Mexico or to Oklahoma is no longer a resident "within the United States" and no longer eligible to the Presidency? Is a native of one of the Territories before its admission as a State a natural-born citizen of the United States? We believe this question to be answered by the opinion in Elk v. Wilkins, 112 U. S., pp. 99-102-110-116, which would have declared a citizen, of an Indian born in the Territories, as being born "within the United States" had he at the same time been "subject to its jurisdiction."

Boyd vs. Thayer, 143 U. S., 162.

So, again, it seems plain that the term is used in a geographical sense, meaning the whole territory subject to the sovereignty and dominion of the United States.

Much misapprehension of the question has arisen from the idea that we owe no duties to the inhabitants of the newly acquired Territory, and that Congress has been vested with absolute authority to dispose of their civil rights and political status.

It is not inopportune to say that no such right has been given to Congress, but only the privilege of regulating the civil rights and political status of the NATIVE inhabitants of the ceded territory, and all the other inhabitants are vested with the nationality of the conquering country. By Article IX of the treaty only the natives of Spain resid ing in the Territories ceded or relinquished are allowed the privilege

of preserving their allegiance to the Crown of Spain, and in order to do this they must within a year from the date of the exchange of ratifications have made a declaration of their intention to preserve such allegiance; in default of such declaration they are held to have renounced it and to have adopted the nationality of the Territory in which they reside. This makes it clear that the nationality of the Territory in which they may reside is imposed ipso facto upon all the other inhabitants of the ceded Territories.

But the question here does not involve the civil rights or political status of the inhabitants of Porto Rico. It involves the rights of a citizen of the United States and of the State of New York, and the question whether he shall be compelled to pay duties on oranges shipped to him from Porto Rico while another citizen is exempted from the payment of duties on oranges shipped from Florida.

This misconception of the situation is due largely to the misleading expression "extension of the Constitution to outlying territory."

The Constitution does not expand and does not shrink. It is not a mechanism; it is not a substance, nor is it even, as Professor Fiske suggests, an organism; it has no relation to anything physical; it is purely a legal instrument. It is the CHARTER, the Magna Charta we may say, under which and by virtue of which the officials exercise the powers of the Government of the United States.

It is therefore an inapt use of terms to speak of new peoples or new possessions coming under the Constitution. The Constitution has no direct relation with new peoples or new possessions. It has a direct relation only with the agencies of government which it creates and which it regulates, on the one side, and with the people that ordained it on the other. The Constitution endows certain functionaries of gov ernment with certain authority; it lays down rules and principles which must be observed in the government which it establishes; it grants powers, privileges, and immunities, and it enacts prohibitions and definite limitations which may not be overlooked or evaded by the agents of the Government which it establishes.

It is no denial of these propositions to say that all the prescriptions or restrictions of the Constitution are not applicable alike in all places and at all times. This may be conceded. But it does not alter the fact that whatever act is done by governmental agency must be referred back to the constitutional provisions to test its legality.

The power is given to make war, to negotiate peace, to enter into treaties. These particular powers and privileges are not themselves accompanied with any detail. The exercise of them, however, comes under the Constitution. In that fundamental charter there are prohi bitions universal and unevadable; in order to read the instrument aright, these prohibitions must not be forgotten in testing the powers to be exercised in making treaties, or making war, or concluding peace. If the Constitution anywhere prohibits cruel and inhuman punishment. prohibits bills of attainder, prohibits the impairment of obligations because these prohibitions are not repeated in that section of the charter which gives a right to negotiate treaties, it can not be inferred that treaties may be negotiated providing for these prohibited acts.

When the Constitution enjoins that all taxes, duties, imposts, etc.. shall be uniform throughout the United States, the power thereafter given to Congress to make rules and regulations for the disposition of territory can not be read so as to include an exemption from this injunction of uniformity.