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. at L. 77, chap. 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. [182 U.S. 244, 348] 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.' [182
U.S. 244, 349] 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 2d, 3d, 4th, 5th and 38th sections of the act are
printed in the margin. 14 [182 U.S. 244, 350] It will be
seen that duties are imposed upon 'merchandise coming into Porto Rico from the
United States:' 'merchandise [182 U.S.
244, 351] 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 1st clause of 8 of article 1 of the Constitution [182 U.S. 244, 352] 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 4, 5, and 6 of 9 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 , 44 L.Ed. 969, 20 Sup. Ct. Rep. 747; Head Money Cases, 112 U.S. 594 , sub
nom. Edye v. Robertson, 28 L.Ed.
802, 5 Sup. Ct. Rep. 247. But it is said that Congress
in attempting to levy these duties was not exercising power derived from the
1st clause of 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, 5 L.Ed. 98, 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. [182 U.S. 244, 353] 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' be- [182
U.S. 244, 354] tween 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 M'Culloch v. Maryland, 4 Wheat. 408, 4 L.Ed. 602; '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 [182 U.S. 244, 355] 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 , 32 L.Ed. 637, 9 Sup. Ct. Rep. 256.
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. [26 Stat. at L. 313,
chap. 728.]
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 9 of article 1 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 [182 U.S. 244,
356] 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.' [5 Wheat. 325, 5 L.Ed.
100.] 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, 18 L.Ed. 497. 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 , 44 L.Ed. 969, 20 Sup. Ct. Rep. 747, 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.' [182 U.S. 244, 357] 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 14th 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,
21 L.Ed. 394, 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, 1, art. 2.
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, 1, art. 2;
art. 12), but as to length of time must residence in the territories be counted
against him? [182 U.S. 244, 358] The 15th
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 13th 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, 2 L.Ed. 73. The opinion
of the court, by Chief Justice Marshall, in that case, was delivered at [182 U.S. 244, 359] the February term, 1803, and at the October term,
1885, the court, in Yick Wo
v. Hopkins, 118 U.S. 356 , 30 L.Ed.
220, 6 Sup. Ct. Rep. 1064, 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. 404, 4 L.Ed. 601.
The prohibitory clauses of the Constitution are many, and [182 U.S.
244, 360] 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, 12 L.Ed. 790, 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, 14 L.Ed.
903, 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, 15 L.Ed.
691, 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, [182 U.S. 244, 361] 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 , 43 L.Ed. 873, 19 Sup. Ct. Rep. 580, is a fair illustration,
for it was there ruled, citing Webster v. Reid, 11 How. 437,
13 L.Ed. 761; Callan
v. Wilson, 127 U.S. 550 , 32 L.Ed. 226, 8 Sup. Ct. Rep. 1301; Thompson v. Utah, 170 U.S. 343 , 42 L.Ed. 1061, 18 Sup. Ct. Rep. 620, 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 34 of the act of February
21, 1871 ( 16 Stat. at L. 419, chap. 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.' [182 U.S. 244, 362] Nor did the court in Bauman v. Ross, 167 U.S. 548 , 42 L.Ed. 270, 17 Sup. Ct. Rep. 966, attribute
the application of the 5th 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 pre-existing truth to ease the doubts of casuists.' Cong. Rec. 56th
Cong. 1st Sess., p. 3507.
In Callan v. Wilson, 127 U.S. 540 , 32 L.Ed. 223, 8 Sup. Ct. Rep. 1301, 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 , 42 L.Ed. 1061, 18 Sup. Ct. Rep. 620, 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 6 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, [182 U.S.
244, 363] 1 Curt. C. C. 50, Fed. Cas.
No. 15,815, '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 Ins. Co. v. 356 Bales of
Cotton, 1 Pet. 511, 7 L.Ed. 242, be read 'in
connection with art. 3, 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 9th clause of 8 of article 1, Congress is vested with
power 'to constitute tribunals inferior to the Supreme Court,' while by 1 of
article 3 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 [182 U.S. 244, 364] 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 3d
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 , 35 L.Ed. 693, 11 Sup. Ct. Rep. 949, '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 , 29 L.Ed. 47, 5 Sup. Ct. Rep. 747, 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 Church of Jesus Christ of L. D. S. v. United States, 136 U.S. 44 , 34 L.Ed. 491, 10 Sup. Ct. Rep. 803, 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. [182
U.S. 244, 365] 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 Ins. Co. v. 356 Bales of Cotton, 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. [182 U.S. 244, 366] 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 2d of February,
1819, Spain ceded Florida to the United States. The 6th 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.' [182 U.S. 244, 367] General
Halleck (International Law, 1st ed. chap. 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, 8 L.Ed. 617, 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 v.
Hagan, 3 How. 225, 11 L.Ed. 572:
'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, R. I. & P. R. Co. v. McGlinn,
114 U.S. 546 , 29 L.Ed. 271, 5 Sup. Ct. Rep. 1006: 'It is a general rule of
public law, recognized and acted upon by the United States, that whenever [182 U.S. 244, 368] 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, 14 L.Ed. 903,
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. [182 U.S. 244, 369] 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 9th 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 [182 U.S. 244, 370]
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. 620, sub
nom. 207 Half Pound Papers of Smoking Tobacco v. United States, 20 L.Ed. 229.
So, Mr. Justice Field in De Geofroy
v. Riggs, 133 U.S. 267 , 33 L.Ed. 645, 10 Sup. Ct. Rep. 297: '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, Const. 354, 355, 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 [182 U.S. 244, 371] 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 in
so far 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 [182 U.S. 244,
372] 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 1st clause of 8, 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 un- [182
U.S. 244, 373] doubted 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 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 author- [182 U.S. 244, 374] ized 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 to-day,
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 trium- [182 U.S.
244, 375] phal
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.
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.