Mr. Justice Harlan, dissenting:
I concur in the dissenting opinion of the Chief Justice. The
grounds upon which he and Mr. Justice Brewer and Mr. Justice Peckham regard the Foraker act as unconstitutional in the particulars
involved in this action meet my entire approval. [182 U.S. 244, 376] Those grounds need not be restated, nor
is it necessary to re-examine the authorities cited by the Chief Justice. I agree
in holding that Porto Rico -- at least after the ratification of the treaty
with Spain -- became a part of the United States within the meaning of the
section of the Constitution enumerating the powers of Congress, and providing
the 'all duties, imposts, and excises shall be uniform throughout the United
States.'
In view, however, of the importance of the questions in this
case, and of the consequences that will follow any conclusion reached by the
court, I deem it appropriate -- without rediscussing
the principal questions presented -- to add some observations suggested by
certain passages in opinions just delivered in support of the judgment.
In one of those opinions it is said that 'the Constitution
was created by the people of the United States, as a union of states, to be
governed solely by representatives of the states;' also, that 'we find the
Constitution speaking only to states, except in the territorial clause, which
is absolute in its terms, and suggestive of no limitations upon the power of
Congress in dealing with them.' I am not sure that I correctly interpret these
words. But if it is meant, as I assume it is meant, that, with the exception
named, the Constitution was ordained by the states, and is addressed to and
operates only on the states, I cannot accept that view.
In Martin v. Hunter, 1 Wheat. 304, 324, 326, 331, 4 L. ed. 97, 102, 104, this court
speaking by Mr. Justice Story, said that 'the Constitution of the United States
was ordained and established, not by the states in their sovereign capacities
but emphatically, as the preamble of the Constitution declares, by 'the People
of the United States."
In McCulloch v. Maryland, 4 Wheat. 316, 403-406, 4 L. ed. 579, 600, 601, Chief Justice
Marshall, speaking for this court, said: 'The government proceeds directly from
the people; is 'ordained and established' in the name of the people; and is
declared to be ordained 'in order to form a more perfect union, establish
justice, insure domestic tranquility, and secure the blessings of liberty to
themselves and to their posterity.' The assent of the states, in their
sovereign capacity, is implied in calling a con- [182 U.S. 244, 377]
vention, and thus submitting that instrument
to the people. But the people were at perfect liberty to accept or reject it;
and their act was final. It required not the affirmance,
and could not be negatived, by the state governments.
The Constitution, when thus adopted, was of complete obligation, and bound the
state sovereignties. . . . 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. . . . It
is the government of all; its powers are delegated by all; it represents all,
and acts for all.'
Although the states are constituent parts of the United
States, the government rests upon the authority of the people of the United
States, and not on that of the states. Chief Justice
Marshall, delivering the unanimous judgment of this court in Cohen v. Virginia,
6 Wheat. 264, 413, 5 L. ed. 257, 293, said:
'That the United States form, for many and for most important purposes, a
single nation, has not yet been denied. In war, we are one people. In making
peace, we are one people. . . . In many other respects, the American people are
one; and the government which is alone capable of controlling and managing
their interests . . . is the government of the Union. It is their government,
and in that character they have no other. America has chosen to be, in many
respects and to many purposes, a nation; and for all these purposes her
government is complete; to all these objects it is competent. The people have
declared that in the exercise of all powers given for those objects it is
supreme. It can, then, in effecting these objects, legitimately control all
individuals or governments within the American territory.'
In reference to the doctrine that the Constitution was
established by and for the states as distinct political organizations, Mr.
Webster said: 'The Constitution itself in its very front refutes that. It
declares that it is ordained and established by [182 U.S. 244, 378]
the People of the United States. So far from saying that it is
established by the governments of the several states, it does not even say that
it is established by the people of the several states. But it pronounces that
it was established by the people of the United States in the aggregate.
Doubtless, the people of the several states, taken collectively, constitute the
people of the United States. But it is in this their collective capacity, it is
as all the people of the United States, that they established the
Constitution.'
In view of the adjudications of this court I cannot assent
to the proposition, whether it be announced in express
words or by implication, that the national government is a government of or by
the states in union, and that the prohibitions and limitations of the
Constitution are addressed only to the states. That is but another form of
saying that, like the government created by the Articles of Confederation, the
present government is a mere league of states, held together by compact between
themselves; whereas, as this court has often declared, it is a government
created by the People of the United States, with enumerated powers, and supreme
over states and individuals with respect to certain objects, throughout the
entire territory over which its jurisdiction extends. If the national
government is in any sense a compact, it is a compact between the People of the
United States among themselves as constituting in the aggregate the political
community by whom the national government was established. The Constitution
speaks, not simply to the states in their organized capacities, but to all
peoples, whether of states or territories, who are
subject to the authority of the United States. Martin v. Hunter, 1 Wheat. 327, 4 L. ed. 103.
In the opinion to which I am referring it is also said 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;' that while all power of government may be abused, the same
may be said of the power of the government 'under the Constitution as well as
outside of it;' that 'if it once be conceded that we are at liberty to acquire
foreign territory, a presumption arises that [182 U.S. 244, 379]
our power with respect to such territories is the same power which other
nations have been accustomed to exercise with respect to territories acquired
by them;' that 'the liberality of Congress in legislating the Constitution into
all our contiguous territories has undoubtedly fostered the impression that it
went there by its own force, but there is nothing in the Constitution itself
and little in the interpretation put upon it, to confirm that impression;' that
as the states could only delegate to Congress such powers as they themselves
possessed, and as they had no power to acquire new territory, and therefore
none to delegate in that connection, the logical inference is that 'if Congress
had power to acquire new territory, which is conceded, that power was not
hampered by the constitutional provisions;' that if 'we assume that the
territorial clause of the Constitution was not intended to be restricted to
such territory as the United States then possessed, there is nothing in the
Constitution to indicate that the power of Congress in dealing with them was
intended to be restricted by any of the other provisions;' and that 'the executive
and legislative departments of the government have for more than a century
interpreted this silence as precluding the idea that the Constitution attached
to these territories as soon as acquired.'
These are words of weighty import. They involve consequences
of the most momentous character. I take leave to say that if the principles
thus announced should ever receive the sanction of a majority of this court, a
radical and mischievous change in our system of government will be the result.
We will, in that event, pass from the era of constitutional liberty guarded and
protected by a written constitution into an era of legislative absolutism.
Although from the foundation of the government this court
has held steadily to the view that the government of the United States was one
of enumerated powers, and that no one of its branches, nor all of its branches
combined, could constitutionally exercise powers not granted, or which were not
necessarily implied from those expressly granted (Martin v. Hunter, 1 Wheat.
326, 331, 4 L. ed. 102, 104) we are now informed that Congress possesses powers
outside of the Constitution, and may deal with new ter-
[182 U.S. 244, 380] ritory, acquired by
treaty or conquest, in the same manner as other nations have been accustomed to
act with respect to territories acquired by them. In my opinion, Congress has
no existence and can exercise no authority outside of the Constitution. Still
less is it true that Congress can deal with new territories just as other
nations have done or may do with their new territories. This nation is under
the control of a written constitution, the supreme law of the land and the only
source of the powers which our government, or any branch or officer of it, may
exert at any time or at any place. Monarchical and despotic governments,
unrestrained by written constitutions, may do with newly acquired territories
what this government may not do consistently with our fundamental law. To say
otherwise is to concede that Congress may, by action taken outside of the
Constitution, engraft upon our republican institutions a colonial system such
as exists under monarchical governments. Surely such a result was never
contemplated by the fathers of the Constitution. If that instrument had
contained a word suggesting the possibility of a result of that character it
would never have been adopted by the people of the United States. The idea that
this country may acquire territories anywhere upon the earth, by conquest or
treaty, and hold them as mere colonies or provinces, -- the people inhabiting
them to enjoy only such rights as Congress chooses to accord to them, -- is
wholly inconsistent with the spirit and genius, as well as with the words, of
the Constitution.
The idea prevails with some-indeed, it found expression in
arguments at the bar-that we have in this country substantially or practically
two national governments; one to be maintained under the Constitution, with all
its restrictions; the other to be maintained by Congress outside and
independently of that instrument, by exercising such powers as other nations of
the earth are accustomed to exercise. It is one thing to give such a
latitudinarian construction to the Constitution as will bring the exercise of
power by Congress, upon a particular occasion or upon a particular subject,
within its provisions. It is quite a different thing to say that Congress may,
if it so elects, proceed outside of the Constitution. The glory of our American
system [182 U.S. 244, 381] of government is that it was created by a
written constitution which protects the people against the exercise of
arbitrary, unlimited power, and the limits of which instrument may not be
passed by the government it created, or by any branch of it, or even by the
people who ordained it, except by amendment or change of its provisions. 'To
what purpose,' Chief Justice Marshall said in Marbury
v. Madison, 1 Cranch, 137, 176, 2 L. ed. 60, 73, '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?
The distinction between a government with limited and unlimited powers is
abolished if those limits do not confine the persons on whom they are imposed,
and if acts prohibited and acts allowed are of equal obligation.'
The wise men who framed the Constitution, and the patriotic
people who adopted it, were unwilling to depend for their safety upon what, in
the opinion referred to, is described as 'certain principles of natural justice
inherent in Anglo-Saxon character, which need no expression in constitutions or
statutes to give them effect or to secure dependencies against legislation
manifestly hostile to their real interests.' They proceeded upon the theory --
the wisdom of which experience has vindicated- that the only safe guaranty
against governmental oppression was to withhold or restrict the power to
oppress. They well remembered that Anglo- Saxons across the ocean had
attempted, in defiance of law and justice, to trample upon the rights of
Anglo-Saxons on this continent, and had sought, by military force, to establish
a government that could at will destroy the privileges that inhere in liberty.
They believed that the establishment here of a government that could administer
public affairs according to its will, unrestrained by any fundamental law and
without regard to the inherent rights of freemen, would be ruinous to the
liberties of the people by exposing them to the oppressions of arbitrary power.
Hence, the Constitution enumerates the powers which Congress and the other
departments may exercise, -- leaving unimpaired, to the states or the People,
the powers not delegated to the national government nor prohibited to the
states. That instrument so expressly declares in [182 U.S. 244, 382]
the 10th Article of Amendment. It will be an evil day for American
liberty if the theory of a government outside of the supreme law of the land
finds lodgment in our constitutional jurisprudence. No higher duty rests upon
this court than to exert its full authority to prevent all violation of the
principles of the Constitution.
Again, it is said that Congress has assumed, in its past
history, that the Constitution goes into territories acquired by purchase or conquest
only when and as it shall so direct, and we are informed of the liberality of
Congress in legislating the Constitution into all our contiguous territories.
This is a view of the Constitution that may well cause surprise, if not alarm.
Congress, as I have observed, has no existence except by virtue of the
Constitution. It is the creature of the Constitution. It has no powers which
that instrument has not granted, expressly or by necessary implication. I
confess that I cannot grasp the thought that Congress, which lives and moves
and has its being in the Constitution, and is consequently the mere creature of
that instrument, can, at its pleasure, legislate or exclude its creator from
territories which were acquired only by authority of the Constitution.
By the express words of the Constitution, every Senator and
Representative is bound, by oath or affirmation, to regard it as the supreme
law of the land. When the constitutional convention was in session there was
much discussion as to the phraseology of the clause defining the supremacy of
the Constitution, laws, and treaties of the United States. At one stage of the
proceedings the convention adopted the following clause: 'This Constitution,
and the laws of the United States made in pursuance thereof, and all the
treaties made under the authority of the United States, shall be the supreme
law of the several states and of their citizens and inhabitants, and the judges
of the several states shall be bound thereby in their decisions, anything in
the constitutions or laws of the several states to the contrary
notwithstanding.' This clause was amended, on motion of Mr. Madison, by
inserting after the words 'all treaties made' the words 'or which shall be
made.' If the clause, so amended had been inserted in the Constitution as
finally adopted, per- [182 U.S. 244,
383] haps there would have been
some justification for saying that the Constitution, laws, and treaties of the
United States constituted the supreme law only in the states, and that outside
of the states the will of Congress was supreme. But the framers of the
Constitution saw the danger of such a provision, and put into that instrument
in place of the above clause the following: '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 the judges in every state shall be bound
thereby, anything in the constitution or laws of any state to the contrary
notwithstanding.' Meigs's Growth of the Constitution, 284, 287. That the convention
struck out the words 'the supreme law of the several states,' and inserted 'the
supreme law of the land,' is a fact of no little significance. The 'land' referred
to manifestly embraced all the peoples and all the territory, whether within or
without the states, over which the United States could exercise jurisdiction or
authority.
Further, it is admitted that some of the provisions of the
Constitution do apply to Porto Rico, and may be invoked as limiting or
restricting the authority of Congress, or for the protection of the people of
that island. And it is said that there is a clear distinction between such
prohibitions 'as go to the very root of the power of Congress to act at all,
irrespective of time or place, and such as are operative only 'throughout the
United States' or among the several states.' In the enforcement of this
suggestion it is said in one of the opinions just delivered: 'Thus, when the Constitution
declares that 'no bill of attainder or ex post facto law shall be passed,' and
that 'no title of nobility shall be granted by the United States,' it goes to
the competency of Congress to pass a bill of that description.' I cannot accept
this reasoning as consistent with the Constitution or with sound rules of
interpretation. The express prohibition upon the passage by Congress of bills
of attainder, or of ex post facto laws, or the granting of titles of nobility,
goes no more directly to the root of the power of Congress than does the
express prohibition against the imposition by Congress of any [182 U.S. 244, 384]
duty, impost, or excise that is not uniform throughout the United
States. The opposite theory, I take leave to say, is quite as extraordinary as
that which assumes that Congress may exercise powers outside of the
Constitution, and may, in its discretion, legislate that instrument into or out
of a domestic territory of the United States.
In the opinion to which I have referred it is suggested that
conditions may arise when the annexation of distant possessions may be
desirable. 'If,' says that opinion, 'those possessions are inhabited by alien
races, differing from us in religion, customs, laws, methods of taxation, and
modes of thought, the administration of government and justice, according to
Anglo-Saxon principles, may for a time be impossible; and the question at once
arises whether large concessions ought not to be made for a time, that
ultimately our own theories may be carried out, and the blessings of a free
government under the Constitution extended to them. We decline to hold that
there is anything in the Constitution to forbid such action.' In my judgment,
the Constitution does not sustain any such theory of our governmental system.
Whether a particular race will or will not assimilate with our people, and
whether they can or cannot with safety to our institutions be brought within
the operation of the Constitution, is a matter to be thought of when it is
proposed to acquire their territory by treaty. A mistake in the acquisition of
territory, although such acquisition seemed at the time to be necessary, cannot
be made the ground for violating the Constitution or refusing to give full
effect to its provisions. The Constitution is not to be obeyed or disobeyed as
the circumstances of a particular crisis in our history may suggest the one or
the other course to be pursued. The People have decreed that it shall be the
supreme law of the land at all times. When the acquisition of territory becomes
complete, by cession, the Constitution necessarily becomes the supreme law of
such new territory, and no power exists in any department of the government to
make 'concessions' that are inconsistent with its provisions. The authority to
make such concessions implies the existence in Congress of power to declare
that constitutional provisions may be ignored under special or [182 U.S. 244, 385]
embarrassing circumstances. No such dispensing power exists in any
branch of our government. The Constitution is supreme over every foot of
territory, wherever situated, under the jurisdiction of the United States, and
its full operation cannot be stayed by any branch of the government in order to
meet what some may suppose to be extraordinary emergencies. If the Constitution
is in force in any territory, it is in force there for every purpose embraced
by the objects for which the government was ordained. Its authority cannot be
displaced by concessions, even if it be true, as asserted in argument in some
of these cases, that if the tariff act took effect in the Philippines of its
own force, the inhabitants of Mandanao, who live on
imported rice, would starve, because the import duty is many fold more than the
ordinary cost of the grain to them. The meaning of the Constitution cannot
depend upon accidental circumstances arising out of the products of other
countries or of this country. We cannot violate the Constitution in order to
serve particular interests in our own or in foreign lands. Even this court, with
its tremendous power, must heed the mandate of the Constitution. No one in
official station, to whatever department of the government he belongs, can
disobey its commands without violating the obligation of the oath he has taken.
By whomsoever and wherever power is exercised in the name and under the
authority of the United States, or of any branch of its government, the
validity or invalidity of that which is done must be determined by the
Constitution.
In De Lima v. Bidwell, just decided, 181 U. S. --, ante,
743, 21 Sup. Ct. Rep. 743, we have held that, upon the ratification of the
treaty with Spain, Porto Rico ceased to be a foreign country and became a
domestic territory of the United States. We have said in that case that from
1803 to the present time there was not a shred of authority, except a dictum in
one case, 'for holding that a district ceded to and in possession of the United
States remains for any purpose a foreign territory;' that territory so acquired
cannot be 'domestic for one purpose and foreign for another;' and that any
judgment to the contrary would be 'pure judicial legislation,' for which there
was no warrant in the Constitution or in the powers conferred upon this court.
Although, as we have just decided, [182
U.S. 244, 386] Porto Rico ceased,
after the ratification of the treaty with Spain, to be a foreign country within
the meaning of the tariff act, and became a domestic country, -- 'a territory
of the United States,' -- it is said that if Congress so wills it may be
controlled and governed outside of the Constitution and by the exertion of the
powers which other nations have been accustomed to exercise with respect to
territories acquired by them; in other words, we may solve the question of the
power of Congress under the Constitution by referring to the powers that may be
exercised by other nations. I cannot assent to this view. I reject altogether
the theory that Congress, in its discretion, can exclude the Constitution from
a domestic territory of the United States, acquired, and which could only have
been acquired, in virtue of the Constitution. I cannot agree that it is a
domestic territory of the United States for the purpose of preventing the
application of the tariff act imposing duties upon imports from foreign
countries, but not a part of the United States for the purpose of enforcing the
constitutional requirement that all duties, imposts, and excises imposed by
Congress 'shall be uniform throughout the United States.' How Porto Rico can be
a domestic territory of the United States, as distinctly held in De Lima v.
Bidwell, and yet, as is now held, not embraced by the words 'throughout the
United States,' is more than I can understand.
We heard much in argument about the 'expanding future of our
country.' It was said that the United States is to become what is called a
'world power;' and that if this government intends to keep abreast of the times
and be equal to the great destiny that awaits the American people, it must be
allowed to exert all the power that other nations are accustomed to exercise.
My answer is, that the fathers never intended that the
authority and influence of this nation should be exerted otherwise than in
accordance with the Constitution. If our government needs more power than is
conferred upon it by the Constitution, that instrument provides the mode in
which it may be amended and additional power thereby obtained. The People of
the United States who ordained the Constitution never supposed that a change
could be made in our system of govern- [182
U.S. 244, 387] ment by mere judicial interpretation. They never
contemplated any such juggling with the words of the Constitution as would
authorize the courts to hold that the words 'throughout the United States,' in
the taxing clause of the Constitution, do not embrace a domestic 'territory of
the United States' having a civil government established by the authority of
the United States. This is a distinction which I am unable to make, and which I
do not think ought to be made when we are endeavoring to ascertain the meaning
of a great instrument of government.
There are other matters to which I desire to refer. In one
of the opinions just delivered the case of Neely v. Henkel, 180 U.S. 109 , ante,
302, 21 Sup. Ct. Rep. 302, is cited in support of the
proposition that the provision of the Foraker act here involved was consistent
with the Constitution. If the contrary had not been asserted I should have said
that the judgment in that case did not have the slightest bearing on the
question before us. The only inquiry there was whether Cuba was a foreign
country or territory within the meaning, not of the tariff act, but of the act
of June 6th, 1900 (31 Stat. at L. 656, chap. 793). We held that it was a
foreign country. We could not have held otherwise, because the United States,
when recognizing the existence of war between this country and Spain,
disclaimed 'any disposition or intention to exercise sovereignty, jurisdiction,
or control over said island except for the pacification thereof,' and asserted
'its determination, when that is accomplished, to leave the government and
control of the island to its people.' We said: 'While by the act of April 25th,
1898, declaring war between this country and Spain, the President was directed
and empowered to use our entire land and naval forces, as well as the militia
of the several states, to such extent as was necessary to carry such act into
effect, that authorization was not for the purpose of making Cuba an integral
part of the United States, but only for the purpose of compelling the
relinquishment by Spain of its authority and government in that island and the
withdrawal of its forces from Cuba and Cuban waters. The legislative and
executive branches of the government, by the joint resolution of April 20th,
1898, expressly disclaimed any purpose to exercise sovereignty juris- [182 U.S.
244, 388] diction, or control
over Cuba 'except for the pacification thereof,' and asserted the determination
of the United States, that object being accomplished, to leave the government
and control of Cuba to its own people. All that has been done in relation to
Cuba has had that end in view, and, so far as the court is informed by the
public history of the relations of this country with that island, nothing has
been done inconsistent with the declared object of the war with Spain. Cuba is
none the less foreign territory, within the meaning of the act of Congress,
because it is under a military governor appointed by and representing the
President in the work of assisting the inhabitants of that island to establish
a government of their own, under which, as a free and independent people, they
may control their own affairs without interference by other nations. The
occupancy of the island by troops of the United States was the necessary result
of the war. That result could not have been avoided by the United States
consistently with the principles of international law or with its obligations
to the people of Cuba. It is true that as between Spain and the United
States,-indeed, as between the United States and all foreign nations, -- Cuba,
upon the cessation of hostilities with Spain and after the treaty of Paris, was
to be treated as if it were conquered territory. But as between the United
States and Cuba, that island is territory held in trust for the inhabitants of
Cuba to whom it rightfully belongs, and to whose exclusive control it will be
surrendered when a stable government shall have been established by their
voluntary action.' In answer to the suggestion that, under the modes of trial
there adopted, Neely, if taken to Cuba, would be denied the rights, privileges,
and immunities accorded by our Constitution to persons charged with crime
against the United States, we said that the constitutional provisions referred
to 'have no relation to crimes committed without the jurisdiction of the United
States against the laws of a foreign country.' What use can be made of that
case in order to prove that the Constitution is not in force in a territory of
the United States acquired by treaty, except as Congress may provide, is more than I can perceive.
There is still another view taken of this case. Conceding [182 U.S. 244, 389] that the national government is one of enumerated
powers, to be exerted only for the limited objects defined in the Constitution,
and that Congress has no power, except as given by that instrument either
expressly or by necessary implication, it is yet said that a new territory,
acquired by treaty or conquest, cannot become incorporated into the United
States without the consent of Congress. What is meant
by such incorporation we are not fully informed, nor are we instructed as to
the precise mode in which it is to be accomplished. Of course, no territory can
become a state in virtue of a treaty or without the consent of the legislative
branch of the government; for only Congress is given power by the Constitution
to admit new states. But it is an entirely different question whether a domestic
'territory of the United States,' having an organized civil government
established by Congress, is not, for all purposes of government by the nation,
under the complete jurisdiction of the United States, and therefore a part of,
and incorporated into, the United States, subject to all the authority which
the national government may exert over any territory or people. If Porto Rico,
although a territory of the United States, may be treated as if it were not a
part of the United States, then New Mexico and Arizona may be treated as not
parts of the United States, and subject to such legislation as Congress may
choose to enact without any reference to the restrictions imposed by the
Constitution. The admission that no power can be exercised under and by authority
of the United States except in accordance with the Constitution is of no
practical value whatever to constitutional liberty, if, as soon as the
admission is made, -- as quickly as the words expressing the thought can be
uttered,-the Constitution is so liberally interpreted as to produce the same
results as those which flow from the theory that Congress may go outside of the
Constitution in dealing with newly acquired territories, and give them the
benefit of that instrument only when and as it shall direct.
Can it for a moment be doubted that the addition of Porto
Rico to the territory of the United States in virtue of the treaty with Spain
has been recognized by direct action upon the part of Congress? Has it not
legislated in recognition of that treaty, [182
U.S. 244, 390] and appropriated
the money which it required this country to pay?
If, by virtue of the ratification of the treaty with Spain,
and the appropriation of the amount which that treaty required this country to
pay, Porto Rico could not become a part of the United States so as to be
embraced by the words 'throughout the United States,' did it not become
'incorporated' into the United States when Congress passed the Foraker act? 31 Stat. at L. 77, chap. 191. What did that act do? It provided
a civil government for Porto Rico, with legislative, executive, and judicial
departments; also, for the appointment by the President, by and with the advice
and consent of the Senate of the United States, of a 'governor, secretary,
attorney general, treasurer, auditor, commissioner of the interior, and a
commissioner of education.' 17-25. It provided for an
executive council, the members of which should be appointed by the President,
by and with the advice and consent of the Senate. 18. The governor was required
to report all transactions of the government in Porto Rico to the President of
the United States. 17. Provision was made for the coins of the United States to
take the place of Porto Rican coins . 11. All laws
enacted by the Porto Rican legislative assembly were required to be reported to
the Congress of the United States, which reserved the power and authority to
amend the same. 31. But that was not all. Except as otherwise provided, and
except also the internal revenue laws, the statutory laws of the United States,
not locally inapplicable, are to have the same force and effect in Porto Rico
as in the United States. 14. A judicial department was established in Porto
Rico, with a judge to be appointed by the President, by and with the advice and
consent of the Senate. 33. The court so established was to be known as the
district court of the United States for Porto Rico, from which writs of error
and appeals were to be allowed to this court. 34. All judicial process, it was
provided, 'shall run in the name of the United States of America, ss: the President of the United States.' 16. And yet it is
said that Porto Rico was not 'incorporated' by the Foraker act into the United
States so as to be part of the United States within the [182 U.S. 244, 391]
meaning of the constitutional requirement that all duties, imposts, and
excises imposed by Congress shall be uniform 'throughout the United States.'
It would seem, according to the theories of some, that even
if Porto Rico is in and of the United States for many important purposes, it is
yet not a part of this country with the privilege of protesting against a rule
of taxation which Congress is expressly forbidden by the Constitution from
adopting as to any part of the 'United States.' And this result comes from the
failure of Congress to use the word 'incorporate' in the Foraker act, although
by the same act all power exercised by the civil government in Porto Rico is by
authority of the United States, and although this court has been given
jurisdiction by writ of error or appeal to re-examine the final judgments of
the district court of the United States established by Congress for that
territory. Suppose Congress had passed this act: 'Be
it enacted by the Senate and House of Representatives in Congress assembled,
That Porto Rico be and is hereby incorporated into the United States as a
territory,' would such a statute have enlarged the scope or effect of the
Foraker act? Would such a statute have accomplished more than the Foraker act
has done? Indeed, would not such legislation have been regarded as most
extraordinary as well as unnecessary?
I am constrained to say that this idea of 'incorporation'
has some occult meaning which my mind does not apprehend. It is enveloped in
some mystery which I am unable to unravel.
In my opinion Porto Rico became, at least after the
ratification of the treaty with Spain, a part of and subject to the
jurisdiction of the United States in respect of all its territory and people,
and that Congress could not thereafter impose any duty, impost, or excise with
respect to that island and its inhabitants, which departed from the rule of
uniformity established by the Constitution.
Footnotes
[ Footnote 1 ] Marbury
v. Madison, 1 Cranch, 176, 2 L. ed.
73 et seq.; Martin v. Hunter, 1 Wheat. 326, 4 L. ed. 102; New Orleans v.
United States, 10 Pet. 662, 736, 9 L. ed. 573, 602; De Geofroy
v. Riggs, 133 U.S. 258, 266 , 33 S. L. ed. 642, 644, 10
Sup. Ct. Rep. 295; United States v. Gettysburg Electric R. Co. 160 U.S. 668, 679 ,
40 S. L. ed. 576, 580, 16 Sup. Ct. Rep. 427, and cases
cited.
[ Footnote 2 ] The City of Panama, 101 U.S. 453, 460 , 25 S. L. ed. 1061, 1064;
Fong Yue Ting v. United States, 149 U.S. 716, 738 , 37 S. L. ed. 914, 921, 13
Sup. Ct. Rep. 1016.
[ Footnote 3 ] Monongahela Nav. Co. v. United
States, 148 U.S. 312, 336 , 37
S. L. ed. 463, 471, 13 Sup. Ct. Rep. 622; Interstate Commerce Commission v. Brimson, 154 U.S. 447, 479 ,
38 S. L. ed. 1047, 1058, 4 Inters. Com. Rep. 545, 14 Sup. Ct.
Rep. 1125; United States v. Joint Traffic Asso.
171 U.S. 571 , 43 L.
ed. 288, 19 Sup. Ct. Rep. 25.
[ Footnote 4 ] United States v. Kagama, 118 U.S. 375, 378 ,
30 S. L. ed. 228, 229, 6 Sup. Ct. Rep. 1109; Shively v. Bowlby,
152 U.S. 1, 48 , 38
S. L. ed. 331, 349, 14 Sup. Ct. Rep. 548.
[ Footnote 5 ] Sere v. Pitot,
6 Cranch, 332, 336, 3 L. ed. 240, 241; M'Culloch v. Maryland, 4 Wheat.
316, 421, 4 L. ed. 579, 605; American Ins. Co. v. 356 Bales of Cotton, 1 Pet.
511, 542, 7 L. ed. 242, 255; United States v. Gratiot, 14 Pet. 526, 537, 10 L.
ed. 573, 578; Scott v. Sandford, 19 How. 448, 15 L.
ed. 718; Clinton v. Englebrecht, 13 Wall. 434, 447, 20 L. ed. 659, 662;
Hamilton v. Dillin, 21 Wall. 73, 93, 22 L. ed.
528, 532; First Nat. Bank v. Yankton County, 101 U.S. 129, 132 , 25 S. L. ed. 1046, 1047;
The City of Panama, 101 U.S. 453 , 457, sub nom. The City of
Panama v. Phelps, 25 L. ed. 1061, 1062; Murphy v. Ramsey, 114 U.S. 15, 44 , 29
S. L. ed. 47, 57, 5 Sup. Ct. Rep. 747; United States v. Kagama,
118 U.S. 375, 380 ,
30 S. L. ed. 228, 230, 6 Sup. Ct. Rep. 1109; Church of Jesus Christ of L. D. S.
v. United States, 136 U.S. 1, 42 , 34 S. L. ed. 478, 490, 10
Sup. Ct. Rep. 792; Boyd v. Nebraska ex rel. Thayer, 143 U.S. 135, 169 ,
36 S. L. ed. 103, 112, 12 Sup. Ct. Rep. 375.
[ Footnote 6 ] Church of Jesus Christ of L. D.
S. v. United States, 136 U.S. 1, 44 , 34
S. L. ed. 478, 491, 10 Sup. Ct. Rep. 792.
[ Footnote 7 ] Loughborough
v. Blake, 5 Wheat. 317, 322, 5 L.
ed. 98, 99; Woodruff v. Parham, 8 Wall. 123, 133, 19 L. ed. 382, 385;
Brown v. Houston, 114 U.S. 622, 628 ,
29 S. L. ed. 257, 259, 5 Sup. Ct. Rep. 1091; Fairbank v. United States, 181, U.
S. 283, ante, 648, 21 Sup. Ct. Rep. 648.
[ Footnote 8 ] American Ins.
Co. v. 356 Bales of Cotton, 1 Pet. 511, 7 L. ed. 242; Benner v. Porter, 9 How.
235, 13 L. ed. 119; Webster v. Reid, 11 How. 437, 460, 13 L. ed. 761, 770; Clinton v. Englebrecht,
13 Wall. 434, 20 L. ed. 659; Reynolds v. United States, 98 U.S. 145 , 25 L.
ed. 244; Callan v. Wilson, 127 U.S. 540 , 32 L. ed. 223, 8 Sup. Ct. Rep.
1301; McAllister v. United States, 141 U.S. 174 , 35 L.
ed. 693, 11 Sup. Ct. Rep. 949; Springville v. Thomas, 166 U.S. 707 , 41 L.
ed. 1172, 17 Sup. Ct. Rep. 717; Bauman v. Ross, 167 U.S. 548 , 42 L.
ed. 270, 17 Sup. Ct. Rep. 966; Thompson v. Utah, 170 U.S. 343 , 42 L.
ed. 1061, 18 Sup. Ct. Rep. 620; Capital Traction Co. v. Hof, 174 U.S. 1 , 43 L.
ed. 873, 19 Sup. Ct. Rep. 580; Black v. Jackson, 177 U.S. 363 , 44 L.
ed. 807, 20 Sup. Ct. Rep. 648.
[ Footnote 9 ] Re Ross, 140 U.S. 453, 461 ,
462 S., 463, sub nom. Ross v. McIntyre, 35 L. ed. 581, 585, 11 Sup. Ct. Rep. 897.
[ Footnote 10 ] Extract from the Free Soil Party
Platform of 1842 (Standwood, Hist. of Presidency, p.
240):
'Resolved, That our fathers ordained the Constitution of the
United States in order, among other great national objects, to establish
justice, promote the general welfare, and secure the blessings of liberty, but
expressly denied to the Federal government which they created, all
constitutional power to deprive any person of life, liberty, or property
without due legal process.
'Resolved, That, in the judgment of this convention,
Congress has no more power to make a slave than to make a king; no more power
to institute or establish slavery than to institute or establish a monarchy. No
such power can be found among those specifically conferred by the Constitution,
or derived by any just implication from them.
'Resolved, That it is the duty of the Federal government to
relieve itself from all responsibility for the existence or continuance of
slavery wherever the government possesses constitutional authority to legislate
on that subject, and is thus responsible for its existence.
'Resolved, That the true, and in the judgment of this
convention the only safe, means of preventing the extension of slavery into
territory now free, is to prohibit its existence in all such territory by an
act of Congress.'
[ Footnote 11 ] Excerpt from Declarations Made
in the Platform of the Republican Party in 1860 (Stanwood, Hist. of Presidency,
p. 293):
'8. That the normal condition of all the territory of the
United States is that of freedom; that as our republican fathers, when they had
abolished slavery in all our national territory, ordained that no person should
be deprived of life, liberty, or property without due process of law, it
becomes our duty, by legislation, whenever such legislation is necessary, to
maintain this provision of the Constitution against all attempts to violate it;
and we deny the authority of Congress, of a territorial legislature, or of any
individual, to give legal existence to slavery in any territory of the United
States.'
[ Footnote 12 ] First draft of Mr. Jefferson's
proposed amendment to the Constitution: 'The province of Louisiana is
incorporated with the United States and made part thereof. The rights of
occupancy in the soil and of self-government are confirmed to Indian
inhabitants as they now exist.' It then proceeded with other provisions
relative to Indian rights and possession and exchange of lands, and forbidding
Congress to dispose of the lands otherwise than is therein provided without
further amendment to the Constitution. This draft closes thus: 'Except as to
that portion thereof which lies south of the latitude of 31ø, which, whenever
they deem expedient, they may enact into a territorial government, either
separate or as making part with one on the eastern side of the river, vesting
the inhabitants thereof with all rights possessed by other territorial citizens
of the United States.' Writings of Jefferson, edited by Ford, vol. 8, p. 241.
[ Footnote 13 ] Letter to William Dunbar of July
7, 1803;
'Before you receive this you will have heard through the
channel of the public papers of the cession of Louisiana by France to the
United States. The terms as stated in the National Intelligencer are accurate.
That the treaty may be ratified in time, I have found it necessary to convene
Congress on the 17th of October, and it is very important for the happiness of
the country that they should possess all information which can be obtained
respecting it, that they make the best arrangements practicable for its good
government. It is most necessary because they will be obliged to ask from the
people an amendment of the Constitution authorizing their receiving the
province into the Union and providing for its government, and limitations of
power which shall be given by that amendment will be unalterable but by the
same authority.' Jefferson's Writings, vol. 8, p. 254.
Letter to Wilson Cary Nicholas of September 7, 1803:
'I am aware of the force of the observations you make on the
power given by the Constitution to Congress to admit new states into the Union
without restraining the subject to the territory then constituting the United
States. But when I consider that the limits of the United States are precisely
fixed by the treaty of 1783, that the Constitution expressly declares itself to
be made for the United States, I cannot help believing that the intention was
to permit Congress to admit into the Union new states which should be formed
out of the territory for which and under whose authority alone they were then
acting. I do not believe it was meant that they might receive England, Ireland,
Holland, etc., into it, which would be the case under your construction. When
an instrument admits two constructions, the one safe, the other dangerous, the one precise, the other indefinite, I prefer that which
is safe and precise. I had rather ask an enlargement of power from the nation
where it is found necessary, than to assume it by a construction which would
make our powers boundless.' Writings of Jefferson, vol. 8, p. 247.
[ Footnote 14 ] Sec. 2.
That on and after the passage of this act the same tariffs, customs, and duties
shall be levied, collected, and paid upon all articles imported into Porto Rico
from ports other than those of the United States which are required by law to
be collected upon articles imported into the United States from foreign
countries: Provided, That on all coffee in the bean or ground imported into
Porto Rico there shall be levied and collected a duty of five cents per pound,
any law or part of law to the contrary notwithstanding: And provided further,
That all Spanish scientific, literary, and artistic works, not subversive of
public order in Porto Rico, shall be admitted free of duty into Porto Rico for
a period of ten years, reckoning from the eleventh day of April, eighteen
hundred and ninety-nine, as provided in said treaty of peace between the United
States and Spain: And provided further, That all books and pamphlets printed in
the English language shall be admitted into Porto Rico free of duty when
imported from the United States.
Sec. 3. That on and after the passage of this act all merchandise
coming into the United States from Porto Rico and coming into Porto Rico from
the United States shall be entered at the several ports of entry upon payment
of fifteen per centum of the duties which are required to be levied, collected,
and paid upon like articles of merchandise imported from foreign countries; and
in addition thereto, upon articles of merchandise of Porto Rican manufacture
coming into the United States and withdrawn for consumption or sale, upon
payment of a tax equal to the internal revenue tax imposed in the United States
upon the like articles of merchandise of domestic manufacture; such tax to be
paid by internal revenue stamp or stamps to be purchased and provided by the
Commissioner of Internal Revenue, and to be procured from the collector of
internal revenue at or most convenient to the port of entry of said merchandise
in the United States, and to be affixed under such regulations as the
Commissioner of Internal Revenue, with the approval of the Secretary of the
Treasury, shall prescribe; and on all articles of merchandise of United States
manufacture coming into Porto Rico, in addition to the duty above provided,
upon payment of a tax equal in rate and amount to the internal revenue tax
imposed in Porto Rico upon the like articles of Porto Rican manufacture:
Provided, That on and after the date when this act shall take effect all
merchandise and articles, except coffee, not dutiable under the tariff laws of
the United States, and all merchandise and articles entered in Porto Rico free
of duty under orders heretofore made by the Secretary of War, shall be admitted
into the several ports thereof, when imported from the United States, free of
duty, all laws or parts of laws to the contrary notwithstanding; and whenever
the legislative assembly of Porto Rico shall have enacted and put into
operation a system of local taxation to meet the necessities of the government
of Porto Rico, by this act established, and shall by resolution duly passed so
notify the President, he shall make proclamation thereof, and thereupon all
tariff duties on merchandise and articles going into Porto Rico from the United
States or coming into the United States from Porto Rico shall cease, and from
and after such date all such merchandise and articles shall be entered at the
several ports of entry free of duty; and in no event shall any duties be
collected after the first day of March, nineteen hundred and two, on
merchandise and articles going into Porto Rico from the United States or coming
into the United states from Porto Rico.
Sec. 4. That the duties and taxes collected in Porto Rico in
pursuance of this act, less the cost of collecting the same, and the gross
amount of all collections of duties and taxes in the United States upon
articles of merchandise coming from Porto Rico, shall not be covered into the
general fund of the Treasury, but shall be held as a separate fund, and shall
be placed at the disposal of the President to be used for the government and
benefit of Porto Rico until the government of Porto Rico herein provided for
shall have been organized, when all moneys theretofore collected under the
provisions hereof, then unexpended, shall be transferred to the local treasury
of Porto Rico, and the Secretary of the Treasury shall designate the several
ports and sub-ports of entry into Porto Rico, and shall make such rules and
regulations and appoint such agents as may be necessary to collect the duties
and taxes authorized to be levied, collected, and paid in Porto Rico by the
provisions of this act, and he shall fix the compensation and provide for the
payment thereof of all such officers, agents, and assistants as he may find it
necessary to employ to carry out the provisions hereof: Provided, however, That
as soon as a civil government for Porto Rico shall have been organized in
accordance with the provisions of this act, and notice thereof shall have been
given to the President, he shall make proclamation thereof, and thereafter all
collections of duties and taxes in Porto Rico under the provisions of this act shall
be paid into the treasury of Porto Rico, to be expended as required by law for
the government and benefit thereof, instead of being paid into the Treasury of
the United States.
Sec. 5: That on and after the day when this act shall go
into effect all goods, wares, and merchandise previously imported from Porto
Rico, for which no entry has been made, and all goods, wares, and merchandise
previously entered without payment of duty and under bond for warehousing,
transportation, or any other purpose, for which no permit of delivery to the
importer or his agent has been issued, shall be subjected to the duties imposed
by this act, and to no other duty, upon the entry or the withdrawal
thereof: Provided, That when duties are based upon the
weight of merchandise deposited in any public or private bonded warehouse said
duties shall be levied and collected upon the weight of such merchandise at the
time of its entry.
...
Sec. 38. That no export duties shall be levied or collected on
exports from Porto Rico; but taxes and assessments on property, and license
fees for franchises, privileges, and concessions may be imposed for the
purposes of the insular and municipal governments, respectively, as may be
provided and defined by act of the legislative assembly; and where necessary to
anticipate taxes and revenues, bonds and other obligations may be issued by
Porto Rico or any municipal government therein as may be provided by law to
provide for expenditures authorized by law, and to protect the public credit,
and to reimburse the United States for any moneys which have been or may be
expended out of the emergency fund of the War Department for the relief of the
industrial conditions of Porto Rico caused by the hurricane of August eighth,
eighteen hundred and ninety-nine: Provided, however, That no public
indebtedness of Porto Rico or of any municipality thereof shall be authorized
or allowed in excess of seven per centum of the aggregate tax valuation of its
property.