MR.
CHIEF JUSTICE FULLER, with whom concurred MR. JUSTICE HARLAN, MR. JUSTICE
BREWER, and MR. JUSTICE PECKHAM, dissenting:
This is
an action brought to recover moneys exacted by the collector of customs at the
port of New York as import duties on two shipments of fruit from ports in the
Island of Porto Rico to the port of New York in November, 1900.
The
treaty ceding Porto Rico to the United States was ratified by the Senate
February 6, 1899;
Congress passed an act to carry out its obligations March 3,
1899, and the ratifications were exchanged, and the treaty proclaimed April 11,
1899. Then followed the act approved April 12, 1900. 31 Stat. 77, c. 191.
MR.
JUSTICE HARLAN, MR. JUSTICE BREWER, MR. JUSTICE PECKHAM, and myself are unable
to concur in the opinions and judgment of the Court in this case. The majority
widely differ in the reasoning by which the conclusion is reached, although
there seems to be concurrence in the view that Porto Rico belongs to the United
States, but nevertheless, and notwithstanding the act of Congress, is not a
part of the United States subject to the provisions of the Constitution in
respect of the levy of taxes, duties, imposts, and excises.
The
inquiry is whether the Act of April 12, 1900, so far as it requires the payment
of import duties on merchandise brought from a port of Porto 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 the Senate, who, together with five other persons, likewise so
appointed and confirmed, are constituted an executive council; local legislative powers are vested in a
legislative assembly consisting of the 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 appointed by the
President for the term of four years. The district court is to be called the
District Court of the United States for Porto Rico, and to possess, in addition
to the ordinary jurisdiction of district courts of the United States,
jurisdiction of all cases cognizant in the circuit courts of the United States.
The act also provides that
"writs
of error and appeals from the final decisions of the Supreme Court of Porto
Rico and the district court of the United States shall be allowed and may be
taken to the Supreme Court of the United States in the same manner and under
the same regulations and in the same cases as from the supreme courts of the
territories of the United States, and such writs of error and appeal shall be
allowed in all cases where the Constitution of the United States, or a treaty
thereof, or an act of Congress is brought in question and the right claimed
thereunder is denied."
It was
also provided that the inhabitants continuing to reside in Porto Rico, who were
Spanish subjects on April 11, 1899, and their children born subsequent thereto
(except such as should elect to preserve their allegiance to the Crown of
Spain), together with citizens of the United States residing in Porto Rico,
should
"constitute
a body politic under the name of The People of Porto Rico, with governmental
powers as hereinafter conferred, and with power to sue and be sued as such."
All
officials authorized by the act are required to,
"before
entering upon the duties of their respective offices, take an oath to support
the Constitution of the United States and the laws of Porto Rico."
The
second third, fourth, fifth and thirty-eighth sections of the act are printed
in the margin.*
It will
be seen that duties are imposed upon "merchandise coming into Porto Rico
from the United States;”
"merchandise
coming
into the United States from Porto Rico;”
taxes upon "articles of merchandise of Porto Rican manufacture
coming into the United States and withdrawn from consumption or sale"
"equal to the internal revenue tax imposed in the United States upon like
articles of domestic manufacture;” and
"on all articles of merchandise of United States manufacture coming into
Porto Rico," "a tax equal in rate and amount to the internal revenue
tax imposed in Porto Rico upon the like articles of Porto Rican
manufacture."
And it
is also provided that all duties collected in Porto Rico on imports from
foreign countries and on "merchandise coming into Porto Rico from the
United States," and "the gross amount of all collections of duties
and taxes in the United States upon articles of merchandise coming from Porto
Rico," shall be held as a separate fund and placed "at the disposal
of the President to be used for the government and benefit of Porto Rico"
until the local government is organized, when
"all
collections of taxes and duties under this act shall be paid into the treasury
of Porto Rico, instead of being paid into the Treasury of the United
States."
The
first clause of sec. 8 of Article I of the Constitution
provides:
"The
Congress shall have power to lay and collect taxes, duties, imposts, and
excises, to pay the debts, and provide for the common defense and general
welfare of the United States;
but all duties, imposts, and excises shall be uniform throughout
the United States."
Clauses
four, five, and six of section nine are:
"No
capitation, or other direct, tax shall be laid, unless in proportion to the
census or enumeration hereinbefore directed to be taken."
"No
tax or duty shall be laid on articles exported from any state."
"No
preference shall be given by any regulation of commerce or revenue to the ports
of one state over those of another; nor shall vessels bound to or from one
state be obliged to enter, clear, or pay duties in another."
This act
on its face does not comply with the rule of uniformity, and that fact is
admitted.
The
uniformity required by the 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. Knowlton v. Moore, 178 U. S. 41;
Head Money Cases, 112 U. S. 594. But it is said that Congress,
in attempting to levy these duties, was not exercising power derived from the
first clause of sec. 8, or restricted by it, because, in dealing with the
territories, Congress exercises unlimited powers of government, and, moreover,
that these duties are merely local taxes.
This
Court, in 1820, when Marshall was Chief Justice, and Washington, William
Johnson, Livingston, Todd, Duvall, and Story were his associates, took a
different view of the power of Congress in the matter of laying and collecting
taxes, duties, imposts, and excises in the territories, and its ruling in Loughborough v. Blake, 5 Wheat. 317,
has never been overruled.
It is
said in one of the opinions of the majority that the Chief Justice "made
certain observations which have occasioned some embarrassment in other
cases." Manifestly this is so in this case, for it is necessary to
overrule that decision in order to reach the result herein announced.
The
question in Loughborough v. Blake was whether Congress had the
right to impose a direct tax on the District of Columbia apart from the grant
of exclusive legislation, which carried the power to levy local taxes. The
Court held that Congress had such power under the clause in question. The
reasoning of Chief Justice Marshall was directed to show that the grant of the
power "to lay and collect taxes, duties, imposts, and excises,"
because it was general and without limitation as to place, consequently
extended "to all places over which the government extends," and he
declared that, if this could be doubted, the doubt was removed by the
subsequent words, which modified the grant, "but all duties, imposts, and
excises shall be uniform throughout the United States." He then said:
"It
will not be contended that the modification of the power extends to places to
which the power itself does not extend. The power, then, to lay and collect
duties, imposts, and excises may be exercised, and must be exercised,
throughout the United States. Does this term designate the whole, or any
particular portion of the American empire? Certainly
this question can admit of but one answer. It is the name given to our great
republic, which is composed of states and territories. The District of
Columbia, or the territory west of the Missouri, is not less within the United
States than Maryland or Pennsylvania, and it is not less necessary, on the
principles of our Constitution, that uniformity in the imposition of imposts,
duties, and excises should be observed in the one than in the other. Since, then,
the power to lay and collect taxes, which includes direct taxes, is obviously
coextensive with the power to lay and collect duties, imposts, and excises, and
since the latter extends throughout the United States, it follows that the
power to impose direct taxes also extends throughout the United States."
It is
wholly inadmissible 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 theory that the Constitution
irrevocably adhered to the soil of Maryland and Virginia, and therefore
accompanied the parts which were ceded to form the District, or that "the
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 separation," and
that this was not given by the cession and its acceptance in accordance with
the constitutional provision itself, and hence that Congress was restricted in
the exercise of its powers in the District, while not so in the territories.
So far
from that, the Chief Justice held the territories as well as the District to be
part of the United States for the purposes of national taxation, and repeated
in effect what he had already said in McCulloch v. Maryland, 4 Wheat. 408:
"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 be
marched and supported."
Conceding
that the power to tax for the purposes of territorial government is implied
from the 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
particular duties are nevertheless not local in their nature, but are imposed
as in the exercise of national 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 the states can only exist if and as
granted by the Constitution. And by the Constitution Congress is vested with
power "to regulate commerce with foreign nations, and among the several
states, and with the Indian tribes." The territories are indeed not
mentioned by name, and yet commerce between the territories and foreign nations
is covered by the clause, which would seem to have been intended to embrace the
entire internal as well as foreign commerce of the country.
It is evident
that Congress cannot regulate commerce between a territory and the states and
other territories in the exercise of the bare power to govern the particular
territory, and as this act was framed to operate and does operate on the people
of the states, the power to so legislate is apparently
rested
on the assumption that the right to regulate commerce between the states and
territories comes within the commerce clause by necessary implication. Stoutenburgh v. Hennick, 129 U. S. 141.
Accordingly,
the Act of Congress of August 8, 1890, entitled "An Act to Limit the
Effect of the Regulations of Commerce between the Several states, and with
Foreign Countries in Certain Cases," applied in terms to the territories
as well as to the states.
In any
point of view, the imposition of duties on commerce operates to regulate
commerce, and is not a matter of local legislation, and it follows that the
levy of these duties was in the exercise of the national power to do so, and
subject to the requirement of geographical uniformity.
The
fact that the proceeds are devoted by the act to the use of the territory does
not make national taxes local. Nobody disputes the source of the power to lay
and collect duties geographically uniform and apply the proceeds by a proper
appropriation act to the relief of a particular territory, but the 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 the diversion
of duties collected from all parts of the United States to a territorial
treasury before reaching the Treasury of the United States. Clause 7 of sec. 9
of Article I provides that "no money shall be drawn from the Treasury but
in consequence of appropriations made by law," and the proposition 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.
It is
also urged that Chief Justice Marshall was entirely in fault because, while the
grant was general and without limitation as to place, the words
"throughout the United States" imposed a limitation as to place so
far as the rule of uniformity was concerned -- namely, a limitation to the
states as such.
Undoubtedly
the view of the Chief Justice was utterly inconsistent with that contention,
and, in addition to what has been quoted, he further remarked:
"If
it be said that the principle of uniformity, established in the Constitution,
secures the District from oppression in the imposition of indirect taxes, it is
not
less true that the principle of apportionment, also established in the
Constitution, secures the District from any oppressive exercise of the power to
lay and collect direct taxes."
It must
be borne in mind that the grant was of the absolute power of taxation for
national purposes, wholly unlimited as to place, and subject to only one
exception and two qualifications. The exception was that exports could not be
taxed at all. The qualifications were that direct taxes must be imposed by the
rule of apportionment, and indirect taxes by the rule of uniformity. License Tax Cases, 5 Wall. 462. But,
as the power necessarily could be exercised throughout every part of the national
domain, state, territory, district, the exception and the qualifications
attended its exercise. That is to say, the protection extended to the people of
the states extended also to the people of the district and the territories.
In Knowlton
v. Moore, 178 U. S. 41, it is shown that the words
"throughout the United States" are but a qualification introduced for
the purpose of rendering the uniformity prescribed geographical, and not
intrinsic, as would have resulted if they had not been used.
As the
grant of the power to lay taxes and duties was unqualified as to place, and the
words were added for the sole purpose of preventing the uniformity required
from being intrinsic, the intention thereby to circumscribe the area within
which the power could operate not only cannot be imputed, but the contrary
presumption must prevail.
Taking the
words in their natural meaning -- in the sense in which they are frequently and
commonly used -- no reason is perceived for disagreeing with the Chief Justice
in the view that they were used in this clause to designate the geographical
unity known as "The United States," "our great republic, which
is composed of states and territories."
Other
parts of the Constitution furnish illustrations of the correctness of this
view. Thus the Constitution vests Congress with the
power "to establish an uniform rule of naturalization, and uniform laws on
the subject of bankruptcy throughout the United States."
This
applies to the territories as well as the states, and has always been
recognized in legislation as binding.
Aliens
in the territories are made citizens of the United States, and bankrupts
residing in the territories are discharged from debts owing citizens of the
states, pursuant to uniform rules and laws enacted by Congress in the 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 the United States and of the state
wherein they reside,"
and
this Court naturally held, in the Slaughter-House Cases, 16 Wall. 36,
that the United States included the District and the territories. Mr. Justice
Miller observed:
"It
had been said by eminent judges that no man was a citizen of the United States
except as he was a citizen of one of the states composing the Union. Those,
therefore, who had been born and resided always in the District of Columbia or
in the territories, though within the United States, were not citizens. Whether
this proposition was sound or not had never been judicially decided."
And he
said the question was put at rest by the amendment, and the distinction between
citizenship of the United States and citizenship of a state was clearly
recognized and established.
"Not
only may a man be a citizen of the United States without being a citizen of a
state, but an important element is necessary to convert the former into the
latter. He must reside within the state to make him a citizen of it, but it is
only necessary that he should be born or naturalized in the United States to be
a citizen of the Union."
No
person is eligible to the office of President unless he has "attained the
age of thirty-five years, and been fourteen years a resident within the United
States." Clause 5, sec. 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 the states? When voted for, he must be
a citizen of one of the states (clause 3, sec. 1, Art. II; art. 12), but as to length of time
must residence in the territories be counted against him?
The Fifteenth
Amendment declares that
"the
right of citizens of the United States to vote shall not be denied or abridged
by the United States or by any state on account of race, color, or previous
condition of servitude."
Where
does that prohibition on the United States especially apply if not in the
territories?
The
Thirteenth Amendment says that neither slavery nor involuntary servitude
"shall exist within the United States or any place subject to their
jurisdiction." Clearly this prohibition would have operated in the
territories if the concluding words had not been added. The history of the
times shows that the addition was made in view of the then condition of the
country -- the amendment passed the house January 31, 1865 -- and it is,
moreover, otherwise applicable than to the territories. Besides, generally
speaking, when words are used simply out of abundant caution, the fact carries
little weight.
Other
illustrations might be adduced, but it is unnecessary to prolong this opinion
by giving them.
I repeat
that no satisfactory ground has been suggested for restricting the words
"throughout the United States," as qualifying the power to impose
duties, to the states, and that conclusion is the more to be avoided when we
reflect that it rests, in the last analysis, on the assertion of the possession
by Congress of unlimited power over the territories.
The
government of the United States is the government ordained by the Constitution
and possesses the powers conferred by the Constitution.
"This
original and supreme will organizes the government, and assigns to different
departments their respective powers. It may either stop here or establish
certain limits not to be transcended by those departments. The government of
the United States is of the latter description. The powers of the legislature
are defined and limited, and that those limits may not be mistaken or
forgotten, the Constitution is written. To what purpose are powers limited, and
to what purpose is that limitation committed to writing, if these limits may at
any time be passed by those intended to be restrained?"
Marbury v. Madison, 1 Cranch
176. The opinion of the Court, by Chief Justice Marshall, in that case was
delivered at
the
February term, 1803, and at the October term, 1885, the Court, in Yick Wo v. Hopkins, 118 U. S. 356, speaking through Mr. Justice
Matthews, said:
"When
we consider the nature and theory of our institutions of government, the principles
upon which they are supposed to rest, and review the history of their
development, we are constrained to conclude that they do not mean to leave room
for the play and action of purely personal and arbitrary power. Sovereignty
itself is, of course, not subject to law, for it is the author and source of law; but in our
system, while sovereign powers are delegated to the agencies of government,
sovereignty itself remains with the people, by whom and for whom all government
exists and acts. And the law is the definition and limitation of power."
From Marbury
v. 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 government is a government of enumerated powers,
the exercise of which is restricted to the use of means appropriate and plainly
adapted to constitutional ends, and which are "not prohibited, but consist
with the letter and spirit of the Constitution."
The
powers delegated by the people to their agents are not enlarged by the
expansion of the domain within which they are exercised. When the restriction
on the exercise 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 the people,
created the government.
It is
again to antagonize Chief Justice Marshall, when he said:
"The
government of the Union, then (whatever may be the influence of this fact on
the case), is emphatically and truly a government of the people. In form and in
substance, it emanates from them. Its powers are granted by them, and are to be
exercised directly on them and for their benefit. This government is
acknowledged by all to be one of enumerated powers."
4
Wheat. 17 U. S. 404.
The
prohibitory clauses of the Constitution are many, and
they
have been repeatedly given effect by this Court in respect of the territories
and the District of Columbia.
The
underlying principle is indicated by Chief Justice Taney in The Passenger Cases, 7 How. 492,
where he maintained the right of the American citizen to free transit in these
words:
"Living,
as we do, under a common government charged with the great concerns of the
whole Union, every citizen of the United States, from the most remote states or
territories, is entitled to free access, not only to the principal departments
established at Washington, but also to its judicial tribunals and public
offices in every state and Territory of the Union . . . . 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 states."
In Cross v. Harrison, 16 How. 197, it
was held that, by the ratification of the treaty with Mexico, "California
became a part of the United States," and that
"the
right claimed to land foreign goods within the United States at any place out
of a collection district, if allowed, would be a violation of that provision in
the Constitution which enjoins that all duties, imposts, and excises shall be
uniform throughout the United States."
In Dred Scott v. Sandford, 19 How. 393,
the Court was unanimous in holding that the power to legislate respecting a
territory was limited by the restrictions of the Constitution, or, as Mr.
Justice Curtis put it, by "the express prohibitions on Congress not to do
certain things."
Mr.
Justice McLean said: "No powers can
be exercised which are prohibited by the Constitution, or which are contrary to
its spirit."
Mr.
Justice Campbell:
"I
look in vain, among the discussions of the time, for the assertion of a supreme
sovereignty for Congress over the territory then belonging to the United
States, or that they might thereafter acquire. I seek in vain for an
annunciation that a consolidated power had been inaugurated,
whose
subject comprehended an empire, and which had no restriction but the discretion
of Congress."
Chief
Justice Taney:
"The
powers over person and property of which we speak are not only not granted to
Congress, but are in express terms denied, and they are forbidden to exercise
them. And this prohibition is not confined to the states, but the words are
general, and extend to the whole territory over which the Constitution gives it
power to legislate, including those portions of it remaining under territorial
government, as well as that covered by states. It is a total absence of power
everywhere within the dominion of the United States, and places the citizens of
a territory, so far as these rights are concerned, on the same footing with
citizens of the states, and guards them as firmly and plainly against any
inroads which the general government might attempt under the plea of implied or
incidental powers."
Many of
the later cases were brought from territories over which Congress had professed
to "extend the Constitution," or from the District after similar
provision, but the decisions did not rest upon the view that the restrictions
on Congress were self-imposed, and might be withdrawn at the pleasure of that
body.
Capital
Traction Co. v. Hof, 174 U. S. 1, is a fair illustration, for it
was there ruled, citing Webster v. Reid, 11 How. 437; Callan v. Wilson, 127 U. S. 550;
Thompson v. Utah, 170 U. S. 343, that
"it
is beyond doubt at the present day that the provisions of the Constitution of
the United States securing the right of trial by jury, whether in civil or in
criminal cases, are applicable to the District of Columbia."
No
reference whatever was made to section 34 of the Act of February 21, 1871, 16
Stat. 419, c. 62, which, in providing for the election of a delegate for the
District, closed with the words:
"The
person having the greatest number of legal votes shall be declared by the
governor to be duly elected, and a certificate thereof shall be given
accordingly, and the Constitution and all the laws of the United States which
are not locally inapplicable shall have the same force and effect within the
said District of Columbia as elsewhere within the United States. "
Nor did
the Court, in Bauman v. Ross, 167 U. S. 548, attribute the application of
the Fifth Amendment to the act of Congress, although it was cited to another
point.
The
truth is that, as Judge Edmunds wrote,
"the
instances in which Congress has declared, in statutes organizing territories,
that the Constitution and laws should be in force there are no evidence that
they were not already there, for Congress and all legislative bodies have often
made enactments that in effect merely declared existing law. In such cases,
they declare a preexisting truth to ease the doubts of casuists."
Cong.Rec. 56th Cong. 1st Sess., p.
3507.
In Callan
v. Wilson, 127 U. S. 540, which was a criminal prosecution
in the District of Columbia, MR. JUSTICE HARLAN, speaking for the Court, said:
"There
is nothing in the history of the Constitution or of the original amendments to
justify the assertion that the people of this District may be lawfully deprived
of the benefit of any of the constitutional guaranties of life, liberty, and
property -- especially of the privilege of trial by jury in criminal
cases."
And
further:
"We
cannot think that the people of this District have in that regard less rights
than those accorded to the people of the territories of the United
States."
In Thompson
v. Utah, 170 U. S. 343, it was held that a statute of
the State of Utah providing for the trial of criminal cases other than capital
by a jury of eight was invalid as applied on a trial for a crime committed
before Utah was admitted; that it was
not
"competent
for the State of Utah, upon its admission into the Union, to do in respect of
Thompson's crime what the United States could not have done while Utah was a
territory,"
and
that an act of Congress providing for a trial by a jury of eight persons in the
Territory of Utah would have been in conflict with the Constitution.
Article
VI of the Constitution ordains:
"This
Constitution, and the laws of the United States which shall be made in
pursuance thereof and all treaties made, or which shall be made, under the
authority of the United States, shall be the supreme law of the land."
And, as
Mr. Justice Curtis observed in United States v. Morris,
1
Curtis 50,
"nothing
can be clearer than the intention to have the Constitution, laws, and treaties
of the United States in equal force throughout every part of the territory of
the United States, alike in all places at all times."
But it
is said that an opposite result will be reached if the opinion of Chief Justice
Marshall in American Insurance Company v. Canter, 1
Pet. 511, be read
"in
connection with Art. III, secs. 1 and 2 of the Constitution, vesting 'the
judicial power of the United States' in 'one Supreme Court, and in such
inferior courts as the Congress may from time to time ordain and establish. The
judges both of the Supreme and inferior courts shall hold their offices during
good behavior,'"
etc.
And it is argued:
"As
the only judicial power vested in Congress is to create courts whose judges
shall hold their offices during good behavior, it necessarily follows that if
Congress authorizes the creation of courts and the appointment of judges for a
limited time, it must act independently of the Constitution, and upon territory
which is not part of the United States within the meaning of the
Constitution."
And
further that, if the territories
"be
a part of the United States, it is difficult to see how Congress could create
courts in such territories except under the judicial clause of the
Constitution."
By the
ninth clause of section 8 of Article I, Congress is vested with power "to
constitute tribunals inferior to the Supreme Court," while by sec. 1 of
Article III, the power is granted to it to establish inferior courts in which
the judicial power of the government treated of in that article is vested.
That
power was to be exerted over the controversies therein named, and did not
relate to the general administration of justice in the territories, which was
committed to courts established as part of the territorial government.
What
the Chief Justice said was:
"These
courts, then, are not constitutional courts in which the judicial power
conferred by the Constitution on the general government can be deposited. They
are incapable of receiving it. They are legislative courts, created in virtue
of the general right of sovereignty which exists in the government, or in
virtue of that
clause
which enables Congress to make all needful rules and regulations respecting the
territory belonging to the United States. The jurisdiction with which they are
invested is not a part of that judicial power which is defined in the third
article of the Constitution, but is conferred by Congress in the execution of
those general powers which that body possesses over the territories of the
United States."
The
Chief Justice was dealing with the subject in view of the nature of the
judicial department of the government and the distinction between federal and
state jurisdiction, and the conclusion was, to use the language of MR. JUSTICE
HARLAN in McAllister v. United States, 141 U. S. 174,
"that
courts in the territories, created under the plenary municipal authority that Congress
possesses over the territories of the United States, are not courts of the
United States created under the authority conferred by that article."
But it did
not therefore follow that the territories were not parts of the United States,
and that the power of Congress in general over them was unlimited; nor was there in any of the
discussions on this subject the least intimation to that effect.
And
this may justly be said of expressions in some other cases supposed to give
color to this doctrine of absolute dominion in dealing with civil rights.
In Murphy
v. Ramsey, 114 U. S. 15, Mr. Justice Matthews said:
"The
personal and 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."
In
the Mormon Church Case, 136 U. S. 44, Mr. Justice Bradley observed:
"Doubtless
Congress, in legislating for the territories, would be subject to those
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. "
That
able judge was referring to the fact that the Constitution does not expressly
declare that its prohibitions operate on the power to govern the territories,
but, because of the implication that an express provision to that effect might
be essential, three members of the Court were constrained to dissent, regarding
it, as was said, "of vital consequence that absolute power should never be
conceded as belonging under our system of government to any one of its
departments."
What
was ruled in Murphy v. Ramsey is that in places over which
Congress has exclusive local jurisdiction, its power over the political status
is plenary.
Much
discussion was had at the bar in respect of the citizenship of the inhabitants of
Porto Rico, but we are not required to consider that subject at large in these
cases. It will be time enough to seek a ford when, if ever, we are brought to
the stream.
Yet
although we are confined to the question of the validity of certain duties imposed
after the organization of Porto Rico as a territory of the United States, a few
observations and some references to adjudged cases may well enough be added in
view of the line of argument pursued in the concurring opinion.
In American Insurance Company v. Canter, 1
Pet. 541 -- in which, by the way, the Court did not accept the views of Mr.
Justice Johnson in the circuit court or of Mr. Webster in argument -- Chief
Justice Marshall said:
"The
course which the argument has taken will require that, in deciding this
question, the Court should take into view the relation in which Florida stands
to the United States. The Constitution confers absolutely on the government of
the Union the powers of making war and of making treaties; consequently that government possesses
the power of acquiring territory, either by conquest or by treaty. The usage of
the world is, if a nation be not entirely subdued, to consider the holding of
conquered territory as a mere military occupation until its fate shall be
determined at the treaty of peace. If it be ceded by the treaty, the
acquisition is confirmed, and the ceded territory becomes a part of the nation
to which it is annexed, either on the terms stipulated in the treaty of cession
or on such as its new master shall impose.
On such
transfer of territory, it has never been held that the relations of the inhabitants
with each other undergo any change. Their relations with their former sovereign
are dissolved, and new relations are created between them and the government
which has acquired their territory. The same act which transfers their country
transfers the allegiance of those who remain in it, and the law, which may be
denominated political, is necessarily changed, although that which regulates
the intercourse and general conduct of individuals remains in force until
altered by the newly created power of the state. On the second of February,
1819, Spain ceded Florida to the United States. The sixth article of the treaty
of cession contains the following provision:
"
"The
inhabitants of the territories which his Catholic Majesty cedes to the United
States by this treaty shall be incorporated in the Union of the United States
as soon as may be consistent with the principles of the federal Constitution,
and admitted to the enjoyment of the privileges, rights, and immunities of the
citizens of the United States."
"This
treaty is the law of the land, and admits the inhabitants of Florida to the
enjoyment of the privileges, rights, and immunities of the citizens of the
United States. It is unnecessary to inquire whether this is not their condition
independent of stipulation. They do not, however, participate in political power; they do not
share in the government till Florida shall become a state. In the meantime,
Florida continues to be a territory of the United States, governed by virtue of
that clause in the Constitution which empowers Congress 'to make all needful
rules and regulations respecting the territory or other property belonging to
the United States.' Perhaps the power of governing a territory belonging to the
United States, which has not, by becoming a state, acquired the means of
self-government, may result necessarily from the facts that it is not within
the jurisdiction of any particular state, and is within the power and
jurisdiction of the United States. The right to govern may be the inevitable
consequence of the right to acquire territory. Whichever may be the source
whence the power is derived, the possession of it is unquestioned. "
General
Halleck (Int.Law, 1st ed., c. 33, § 14), after
quoting from Chief Justice Marshall, observed:
"This
is now a well settled rule of the law of nations, and is universally admitted.
Its provisions are clear and simple and easily understood, but it is not so
easy to distinguish between what are political and what
are municipal laws, and to determine when and how
far the constitution and laws of the conqueror change or replace those
of the conquered. And in case the government of the new state is a
constitutional government of limited and divided powers, questions necessarily
arise respecting the authority, which, in the absence of legislative action,
can be exercised in the conquered territory after the cessation of war and the
conclusion of a treaty of peace. The determination of these questions depends
upon the institutions and laws of the new sovereign, which, though conformable
to the general rule of the law of nations, affect the construction and
application of that rule to particular cases."
In United States v. Percheman, 7
Pet. 87, the Chief Justice said:
"The
people change their allegiance; their relation to their ancient
sovereign is dissolved; but their
relations to each other, and their rights of property, remain undisturbed. If
this be the modern rule even in cases of conquest, who can doubt its
application to the case of an amicable cession of territory? . . . The cession
of a territory by its name from one sovereign to another, conveying the
compound idea of surrendering at the same time the lands and the people who
inhabit them, would be necessarily understood to pass the sovereignty only, and
not to interfere with private property."
Again,
the court in Pollard's Lessee v. Hagan, 3 How. 225:
"Every
nation acquiring territory, by treaty or otherwise, must hold it subject to the
constitution and laws of its own government, and not according to those of the
government ceding it."
And
in Chicago, Rock Island & Pacific Railway Co. v. McGlinn, 114 U. S. 546:
"It
is a general rule of public law, recognized and acted upon by the United
States, that whenever
political
jurisdiction and legislative power over any territory are transferred from one
nation or sovereign to another, the municipal laws of the country -- that is,
laws which are intended for the protection of private rights -- continue in
force until abrogated or changed by the new government or sovereign. By the
cession, public property passes from one government to the other, but private
property remains as before, and with it those municipal laws which are designed
to secure its peaceful use and enjoyment. As a matter of course, all laws,
ordinances, and regulations in conflict with the political character,
institutions, and constitution of the new government are at once displaced.
Thus, upon a cession of political jurisdiction and legislative power -- and the
latter is involved in the former -- to the United States, the laws of the
country in support of an established religion, or abridging the freedom of the
press, or authorizing cruel and unusual punishments, and the like, would at
once cease to be of obligatory force without any declaration to that effect,
and the laws of the country on other subjects would necessarily be superseded by
existing laws of the new government upon the same matters. But, with respect to
other laws affecting the possession, use, and transfer of property and designed
to secure good order and peace in the community and promote its health and
prosperity, which are strictly of a municipal character, the rule is general
that a change of government leaves them in force until, by direct action of the
new government, they are altered or repealed."
When a cession
of territory to the United States is completed by the ratification of a treaty,
it was stated in Cross v. Harrison, 16 How. 198, that
the land ceded becomes a part of the United States, and that, as soon as it
becomes so, the territory is subject to the acts which were in force to
regulate foreign commerce with the United States, after those had ceased which
had been instituted for its regulation as a belligerent right, and the latter
ceased after the ratification of the treaty. This statement was made by the
justice delivering the opinion, as the result of the discussion and argument
which he had already set forth. It was his summing up of what he supposed was
decided on that subject in the case in which he was writing.
The new
master was, in the instance of Porto Rico, the United States, a constitutional
government with limited powers, and the terms which the Constitution itself
imposed, or which might be imposed in accordance with the Constitution, were
the terms on which the new master took possession.
The
power of the United States to acquire territory by conquest, by treaty, or by
discovery and occupation is not disputed, nor is the proposition that in all
international relations, interests, and responsibilities, the United States is
a separate, independent, and sovereign nation;
but it does not derive its powers from international law, which, though
a part of our municipal law, is not a part of the organic law of the land. The
source of national power in this country is the Constitution of the United
States, and the government, as to our internal affairs, possesses no inherent
sovereign power not derived from that instrument and inconsistent with its
letter and spirit.
Doubtless
the subjects of the former sovereign are brought by the transfer under the
protection of the acquiring power, and are so far forth impressed with its
nationality, but it does not follow that they necessarily acquire the full
status of citizens. The ninth article of the treaty ceding Porto Rico to the
United States provided that Spanish subjects, natives of the Peninsula,
residing in the ceded territory might remain or remove, and in case they
remained, might preserve their allegiance to the Crown of Spain by making a
declaration of their decision to do so, "in default of which declaration
they shall be held to have renounced it and to have adopted the nationality of
the territory in which they reside."
The
same article also contained this paragraph:
"The
civil rights and political status of the native inhabitants of the territories
hereby ceded to the United States shall be determined by Congress."
This was
nothing more than a declaration of the accepted principles of international law
applicable to the status of the Spanish subjects and of the native inhabitants.
It did not assume that Congress could deprive the inhabitants of ceded
territory of rights to which they might be entitled. The grant by Spain could
not enlarge the powers of Congress, nor did it
purport
to secure from the United States a guaranty of civil or political privileges.
Indeed,
a treaty which undertook to take away what the Constitution secured, or to
enlarge the federal jurisdiction, would be simply void.
"It
need hardly be said that a treaty cannot change the Constitution, or be held
valid if it be in violation of that instrument. This results from the nature and
fundamental principles of our government."
The Cherokee Tobacco, 11 Wall. 616, 78 U. S. 620.
So Mr. Justice
Field, in De Geofroy v. Riggs, 133 U. S. 267:
"The
treaty power, as expressed in the Constitution, is in terms unlimited except by
those restraints which are found in that instrument against the action of the
government or of its departments and those arising from the nature of the
government itself and of that of the states. It would not be contended that it
extends so far as to authorize what the Constitution forbids, or a change in
the character of the government or in that of one of the states, or a cession
of any portion of the territory of the latter, without its consent."
And it
certainly cannot be admitted that the power of Congress to lay and collect
taxes and duties can be curtailed by an arrangement made with a foreign nation
by the President and two-thirds of a quorum of the Senate. See 2
Tucker on the Constitution §§ 354-356.
In the
language of Judge Cooley:
"The
Constitution itself never yields to treaty or enactment; it neither changes with time nor does
it in theory bend to the force of circumstances. It may be amended according to
its own permission, but while it stands, it is"
"a
law for rulers and people, equally in war and in peace, and covers with the
shield of its protection all classes of men at all times and under all
circumstances."
"Its
principles cannot therefore be set aside in order to meet the supposed
necessities of great crises."
"No
doctrine involving more pernicious consequences was ever invented by the wit of
man than that any of its provisions can be suspended during any of the great
exigencies of government."
I am not
intimating in the least degree that any reason exists for regarding this
article to be unconstitutional, but even if it
were,
the fact of the cession is a fact accomplished, and this Court is concerned
only with the question of the power of the government in laying duties in
respect of commerce with the territory so ceded.
In the
concurring opinion of MR. JUSTICE WHITE, we find certain important propositions
conceded, some of which are denied or not admitted in the other. These are to
the effect that
"when
an act of any department is challenged because not warranted by the
Constitution, the existence of the authority is to be ascertained by
determining whether the power has been conferred by the Constitution, either in
express terms or by lawful implication;”
that,
as every function of the government is derived from the Constitution,
"that instrument is everywhere and at all times potential insofar as its
provisions are applicable;”
that
"wherever
a power is given by the Constitution, and there is a limitation imposed on the
authority, such restriction operates upon and confines every action on the
subject within its constitutional limits;”
that where
conditions are brought about to which any particular provision of the
Constitution applies, its controlling influence cannot be frustrated by the
action of any or all of the departments of the government; 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 every applicable express limitation
of the Constitution is in force, and even where there is no express command
which applies, there may nevertheless be restrictions of so fundamental a
nature that they cannot be transgressed though not expressed in so many
words; that every provision of the
Constitution which is applicable to the territories is controlling therein, and
all the limitations of the Constitution applicable to Congress in governing the
territories necessarily limit its power;
that in the case of the territories, when a provision of the
Constitution is invoked, the question is whether the provision relied on is
applicable, and that the power to lay and collect taxes, duties, imposts, and
excises, as well as the qualification of uniformity, restrains Congress from
imposing an impost duty on goods coming into the
United States from a territory
which
has been incorporated into and forms a part of the United States.
And it
is said that the determination of whether a particular provision is applicable
involves an inquiry into the situation of the territory and its relations to
the United States, although it does not follow, when the Constitution has
withheld all power over a given subject, that such an inquiry is necessary.
The
inquiry is stated to be: "Had Porto
Rico, at the time of the passage of the act in question, been incorporated into
and become an integral part of the United States?" And, the answer being
given that it had not, it is held that the rule of uniformity was not
applicable.
I
submit that that is not the question in this case. The question is whether,
when Congress has created a civil government for Porto Rico, has constituted
its inhabitants a body politic, has given it a governor and other officers, a
legislative assembly, and courts, with right of appeal to this Court, Congress
can, in the same act and in the exercise of the power conferred by the first
clause of section eight, impose duties on the commerce between Porto Rico and
the states and other territories in contravention of the rule of uniformity
qualifying the power. If this can be done, it is because the power of Congress
over commerce between the states and any of the territories is not restricted
by the Constitution. This was the position taken by the Attorney General, with
a candor and ability that did him great credit.
But
that position is rejected, and the contention seems to be that, if an organized
and settled province of another sovereignty is acquired by the United States,
Congress has the power to keep it, like a disembodied shade, in an intermediate
state of ambiguous existence for an indefinite period, and, more than that,
that after it has been called from that limbo, commerce with it is absolutely
subject to the will of Congress, irrespective of constitutional provisions.
The
accuracy of this view is supposed to be sustained by the act of 1856 in
relation to the protection of citizens of the United States removing guano from
unoccupied islands, but I am unable to see why the discharge by the United
States of its undoubted
duty to
protect its citizens on terra nullius, whether temporarily
engaged in catching and curing fish, or working mines, or taking away manure,
furnishes support to the proposition that the power of Congress over the
territories of the United States is unrestricted.
Great
stress is thrown upon the word "incorporation," as if possessed of
some occult meaning, but I take it that the act under consideration made Porto
Rico, whatever its situation before, an organized territory of the United
States. Being such, and the act undertaking to impose duties by virtue of
clause 1 of section 8, how is it that the rule which qualifies the power does
not apply to its exercise in respect of commerce with that territory? The power
can only be exercised as prescribed, and even if the rule of uniformity could
be treated as a mere regulation of the granted power -- a suggestion to which I
do not assent -- the validity of these duties comes up directly, and it is idle
to discuss the distinction between a total want of power and a defective
exercise of it.
The
concurring opinion recognizes the fact that Congress, in dealing with the
people of new territories or possessions, is bound to respect the fundamental
guaranties of life, liberty, and property, but assumes that Congress is not
bound, in those territories or possessions, to follow the rules of taxation
prescribed by the Constitution. And yet the power to tax involves the power to
destroy, and the levy of duties touches all our people in all places under the
jurisdiction of the government.
The
logical result is that Congress may prohibit commerce altogether between the
states and territories, and may prescribe one rule of taxation in one
territory, and a different rule in another.
That
theory assumes that the Constitution created a government empowered to acquire
countries throughout the world, to be governed by different rules than those
obtaining in the original states and territories, and substitutes for the
present system of republican government a system of domination over distant
provinces in the exercise of unrestricted power.
In our judgment,
so much of the Porto Rican act as authorized
the
imposition of these duties is invalid, and plaintiffs were entitled to recover.
Some
argument was made as to general consequences apprehended to flow from this
result, but the language of the Constitution is too plain and unambiguous to
permit its meaning to be thus influenced. There is nothing
"in
the literal construction so obviously absurd, or mischievous, or repugnant to
the general spirit of the instrument as to justify those who expound the
Constitution"
in
giving it a construction not warranted by its words.
Briefs
have been presented at this bar purporting to be on behalf of certain
industries and eloquently setting forth the desirability that our government
should possess the power to impose a tariff on the products of newly acquired
territories so as to diminish or remove competition. That however, furnishes no
basis for judicial judgment, and if the producers of staples in the existing
states of this Union believe the Constitution should be amended so as to reach
that result, the instrument itself provides how such amendment can be
accomplished. The people of all the states are entitled to a voice in the
settlement of that subject.
Again,
it is objected on behalf of the government that the possession of absolute
power is essential to the acquisition of vast and distant territories, and that
we should regard the situation as it is today, rather than as it was a century
ago.
"We
must look at the situation as comprehending a possibility -- I do not say a
probability, but a possibility -- that the question might be as to the powers
of this government in the acquisition of Egypt and the Soudan, or a section of
Central Africa, or a spot in the Antarctic Circle, or a section of the Chinese
Empire."
But it
must be remembered that, as Marshall and Story declared, the Constitution was
framed for ages to come, and that the sagacious men who framed it were well
aware that a mighty future waited on their work. The rising sun to which
Franklin referred at the close of the convention, they well knew, was that star
of empire whose course Berkeley had sung sixty years before.
They
may not, indeed, have deliberately considered a triumphal
progress
of the nation, as such, around the earth, but as Marshall wrote:
"It
is not enough to say that this particular case was not in the mind of the
convention when the article was framed, nor of the American people when it was
adopted. It is necessary to go further and to say that, had this particular
case been suggested, the language would have been so varied as to exclude it,
or it would have been made a special exception."
This cannot
be said, and, on the contrary, in order to the successful extension of our
institutions, the reasonable presumption is that the limitations on the
exertion of arbitrary power would have been made more rigorous.
After
all, these arguments are merely political, and "political reasons have not
the requisite certainty to afford rules of judicial interpretation."
Congress
has power to make all laws which shall be necessary and proper for carrying
into execution all the powers vested by the Constitution in the government of
the United States, or in any department or officer thereof. If the end be
legitimate and within the scope of the Constitution, then, to accomplish it,
Congress may use
"all
means which are appropriate, which are plainly adapted to that end, which are
not prohibited, but consist with the letter and spirit of the
Constitution."
The
grave duty of determining whether an act of Congress does or does not comply
with these requirements is only to be discharged by apply in the well settled
rules which govern the interpretation of fundamental law, unaffected by the
theoretical opinions of individuals.
Tested
by those rules our conviction is that the imposition of these duties cannot be
sustained.