*1 ADJUDGED CASES THE
IK THEUNITED OF STATES, SUPREMECOURT AT 1900. TERM, OCTOBER v. BID WELL. DE LIMA THE UNITED FOR THE ERROR TO THE CIRCUIT COURT OF STATES DISTRICT OF NEW YORK. SOUTHERN Argued January 8, 9,10, 11, 1901.Decided May 27, 1901. 456. No. appeal By given Act of an from the de- Administrative Customs charge- the rate and “as to amount of duties cision of the collector upon imported merchandise,” Appraisers, to the Board of able General decide as to the and the are authorized to construction of the law who merchandise; the rate respecting the classification Of such facts imposed classification;” the mer- thereon under such but where duties imported all, at been alleged not to have been have chandise is port another, Ap- domestic the Board of General brought from one case, money and an had and praisers has no action Jurisdiction against the lie collector to recover back duties assessed received will paid upon property, protest. him such under peace States and ratification of between the United theWith “foreign Spain, April 11, to be a the island Porto Rico ceased country” meaning within the of the tariff laws. 24,1900,applying given to the act of for the ben- effect be March Whatever importations duties from that island of Porto Rico the received on efit Spanish application forces, to an ac- the evacuation it has after passed. brought before the act was tion instituted Court an action originally Supreme This firm of D. A. De Lima Co. of New York the State & (1) clxxxii —1 XlYOL. Statement Case. collector New back against York, recover port duties have exacted and under alleged illegally paid pro- test, certain San Juan importations sugar *2 island of Porto the autumn of Rico, 1899,and during subsequent to the cession of the island to the United States. the and
Upon collector, Stat. petition Rev. pursuant 643, sec. the case removed was certiorari to the Circuit Court of the United States, which the defendant and de- appeared murred to the the did complaint upon state ground a of and cause also that the action, court-had no of jurisdiction the demurrer case. The was sustained both grounds, the action dismissed. Hence this writ of error. the In this and cases, following collectively “ Insular Tariff as the the dates Cases,” here
designated given material: become 1898,
In Porto Rico invaded the July, was forces by military of United under the General Miles. 1898,
On the August 12, during progress campaign, into entered between the was of State and protocol Secretary on the French for a Ambassador part Spain, providing cession of the island and the hostilities, con- suspension 30 Stat. clusion 1742. treaty peace.
On October Porto Rico evacuated was 18, Spanish forces.
On December such was at Paris, 10,1898, signed (un- der which States the island of ceded to Porto Spain and Senate, was ratified the President February 6,1899, Rico,) Queen March 19, 1899. 30 Stat. Regent Spain, 1754. ' an On March an act was 2,1899, making passed appropriation out carry treaty. obligations
On were and the 11, 1899, ratifications April exchanged, at "W treaty proclaimed ashington.
On called an act was 12, 1900, April commonly passed, Foraker and a civil Act, revenues provide temporary govern- ment for which took Rico, 1, Porto effect May ,No. case
This Downes v. argued Bidwell; 507, No. 501, v. United States No. 502, v. United Dooley ; Dooley v.. BID
De LIMA WELL.
Argument for Plaintiffs in Error. States; o. v. United States. Armstrong briefs N “ were at in a book reported entitled The arguments length Cases,” Insular to a resolution compiled publishéd pursuant of the House of in the Second Session Representatives passed 56th both the briefs of containing counsel Congress, oral and their amounted to 1075 Of arguments. They pages. course it is all here, even if it were de impossible reproduce sirable. Coudert,
Mr. Frederick B. error. Jr., Mr. plaintiff Charles Frederick Adams and Mr. Paul Fuller were on his brief. of law are: whether the said First, involved questions
circuit court cause action alleged jurisdiction had Second, defendant.” whether the complaint against sufficient to constitute cause of action states facts *3 complaint the defendant.” against the under circumstances: 1. The raised following questions “ the 1899, defendant” November, On or about the 6th of day and commissioned col at the timé' the duly appointed
(being the of United States at New York, of customs of the port lector exercise of his functions as such and unrestricted in the actual all the and and of authority vested collector, powers fully of office did under color his said his office”) through said and and in him authority . of the . . exercise- powers vested his as such col of duties for the performance purposes duress of from ... demand collect by goods . and lector, Co., Lima of A. De & as du firm D. alleged said plaintiffs’ the island of of Puerto certain product ties sugars, upon York, and at New the port Rico, consigned (said) plaintiffs in the said of San Juan island from thither port brought said (the steamer Salamanca 1899, the month of by July, during in warehouse and described those mentioned entry being sugars 1221, bond September 11,1899), No. 117,587, liquidated No. dollars and and hundred fifty-eight two thousand four fifty sum of . were . . which sum the plaintiffs against cents ($2150.58), com made, of their duly and formal protest will spite their 190Ó. Plaintiffs Error. did and in order to obtain pelled pay, pay, possession said .... which the said sugars, defendant, enabled so to do wa,s and of his said power office, had authority detained, and threatened to continue to detain from
detaining, them, as a condition to the thereof such exacting delivery payment said duties. . . . alleged
“. . . orOn about 14th day 1899, the September, defendant, such collector as being aforesaid, did, under color of his said office, . . . through exercise of the powers in him vested for the authority purposes performance of his duties such collector, . . . demand and duress collect from the said firm goods plaintiffs’ D. A. De Lima & Co., duties certain alleged sugars, product island of Puerto Eico, at the consigned plaintiffs port York, New thither of San brought port Juan island said the month of June, during steamer said those Evelyn (the mentioned and sugars being described in No. entry 95,684, consumption the sum liquidated Sept. 11,1899), of five thousand four hundred and dollars and fifty-two sixty- one cents which sum ($5,452.61), (the) were . . plaintiffs . will their of their formal spite protest made, against duly and did in order to obtain pay, pay, compelled possession . . which the . said defendant, said enabled so to do sugars, of his said office, had authority was- detained, to continue to detain and threatened from them, exact- detaining, thereof such as a to thé condition delivery such ing payment duties. . . . alleged
“. . 1st . On or about day September, 1899, the aforesaid, did, defendant such collector as under color of being his said . exercise office and . . of the powers through *4 and in him for the vested purpose authority performance . demand and his duties as such collector . . duress collect from the said firm of D. A. De Lima goods plaintiffs’ &' Co., duties certain alleged upon sugars, product island Puerto to at the Eico, consigned (the) plaintiffs port New and thither in York, from the of San Juan, brought port the said the month island, of-, steamer during Catania said those mentioned and described (the sugars being
De LIMA BID WELL. in Plaintiffs Error. 1st, No. 89,319, liquidated September entry consümption dol- two hundred and of five thousand forty-two the sum 1899), which sum cents plaintiffs ($5242.17), (the) lars and seventeen of their formal will and . their spite . were . against and did order made, pay, compelled pay, protest duly . . which the said . of their said sugars, possession obtain his and authority so to do enabled defendant, threatened to con- was detained, had detaining, said office, as a condition the delivery from them, tinue detain exacting .” . . duties. (Facts thereof, such such alleged payment Record demurrer, and admitted by stated in the complaint 43, and 5.) pp. duties ex- under said thus, alleged protest, paid
Having to them of the as a condition to the acted them delivery error suit brought sugars question, plaintiffs State of recover back the in the Court same, Supreme New York. writ of dated March out certiorari, 22, 1900, sued
By L. Bidwell, defendant Burnett, through Henry Esq., for said defendant, States- attorney, acting attorney into said the said suit was removed Circuit Court of the for the Southern District of United States New in the York, Second Circuit. the said United States as attor-
Thereupon attorney, acting defendant, for said a demurrer to the ney interposed complaint the following grounds-: “ First. that it does ground not state facts sufficient Upon cause of to constitute a action the defendant. against Second. that this court ground has Upon jurisdiction of the cause of action in said said alleged complaint against defendant.” filed decree, October 17, 1900, the said By Circuit Court ordered, decreed that the demurrer . . . adjudged, said both on sustained, that the does ground complaint
state sufficient to facts constitute cause of action against on the further defendant, that this court has no ground cause of action jurisdiction alleged complaint ” on the defendant; same against day judgment *5 6 1900.
Argument for Plaintiffs in Error. “that filed, with signed complaint dismissed” costs. error,
-To review the said this writ of has been judgment brought. “ I. It is not true has no (the) of the jurisdiction court (cid:127) of cause action in said defend- alleged complaint against (the) ant.” The action one official for being Federal acts against done color his and the office, remedy provided by customs administrative act not (inasmuch available as the being “ does not concede that mer- plaintiff [sugar] imported chandise of the court to entertain this ”), jurisdiction action is entirely beyond question. “ II. It is not true does not state facts complaint ” sufficient constitute a cause of action : “ 1. Puerto Rico was in June or not, for- September, 1899, ” within the of that term as eign used country meaning tariff act 1897 and which (under which, alone, authority the defendant claimed the to collect as duties the sums right mentioned in- the complaint). if—in Even denial contention —the tariff foregoing had be construed to author-
act as fact purporting ize the collection duties on from Puerto Rico goods brought in that into New in June then, York September, aspect extent, the act in be held un- and to must it, question ineffectual to the exaction constitutional and justify complained inof this case. “duties”
a. and collect” save cannot “lay United States;” such as “uniform throughout ” “ on Puerto Rico b. Duties collectible brought goods would have been 1899,” into New York June or September, the United Puerto States,” duties not “uniform throughout ratification been, treaty Rico ever since the having “of United part Spain (antedating period question), ” States: make States Treaties territory “ceding” (1) within so “ceded” a part to the uni- Constitution meaning provision of duties United States. formity throughout v. BID WELL. LIMA De in Error.- Plaintiffs Puerto Eico to the Uni- treaty ceded” with Spain (2) became effective (a when such the date ted States was noth- here in There question). date period antedating *6 as the the pres- operation suspend ing postpone circumstance—the one island, ent cession to that effect—that (the treaty) has been which suggested civil determine the shall rights the provides of the ceded islands inhabitants the native status of political have one inhabitants may year the Spanish-born their alle- or abandon whether choose which to preserve to Spain. giance “ cause the has true that the court
It is not jurisdiction defendant.” in said (the) action complaint against alleged for acts done official by a Federal one The action against being customs the his and the office, remedy color of provided as plaintiff act not available (inasmuch administrative being “ is merchandise ”), that the does not concede imported sugar action the this entirely court entertain the jurisdiction n beyond question. his The defendant’s claim “second (in ground” demurrer) of this court has no is based, that the as jurisdiction action, “ his brief in the court on below, the view that the appears for all entire claimants for duties only existing remedy is to be to be exacted found in the customs illegally alleged act of June which has 10, 1890, administrative for provided new course of on behalf of claimants, such re- procedure the of action such cases, and re- preexisting pealed rights the collector lieved his decisions or actions as liability from customs duties.” ” “ In words, other that ” the act of 1890 on argument “ the one hand from an provided (distinct action, remedy one, such present against colleetor), special availed here have themselves to remedy plaintiffs might a decision of the issue have secure sought present while on the suit; hand, other said act effect pre- an vented valid of such action bringing present by ” “ (in sec. sections 2931 and 3011 the Eevised repealing 29) s
Argument for Plaintiffs in Error. Statutes for an exclusive (“providing of ac- statutory right “ sec. tion-’’), expressly (in collector 25) relieving etc. liability,” To the we this, contrary submit: respectfully ” “ “ ”
First. That and the remedy procedure provided the customs administrative act of June 1890, have no whatever to, are not available cases which application in, ” (like one) are not customs at present cases all mer- (the chandise not having and, imported ”); That act of Second. 1890 has not the valid prevented an such action as a case bringing such as that present, set herein, up by complaint of sections 2931 repeal and 3011 the Revised Statutes and its that col- provision lectors should not be liable for or on account of of the mat- in “ mentioned ters connection in section 25 of the act. ” That I. and the remedy procedure provided by *7 customs administrative act of 1890 are not available in cases “ ” which the are (like not customs cases at present one) all, has laid down in this court distinctly unanimous opinion in the as the case, Fassett show: following quotations “ on It is contended behalf Fassett that when col- he, as of the lector, took decided that yacht she was du- possession to her owner tiable, the towas under only remedy open pay the duties assessed and in her, protest upon secure way with the her, thereafter, as possession sec- right provided 14 15 of tions the customs administrative act, June 10th, 1890, 26 to obtain a 131,137, 138, Stat. refund of those duties an from the decision of the collector to the taking appeal Board of General if Appraisers, appealing, necessary, that board to the of the Circuit Court United States.” “ is, The idea if embodied libel was not yacht an of the act collector in imported article, forcibly taking and, of her was as that act tortious,, was committed possession on the waters of the the District navigable Court, as a court of in a had cause of admiralty, jurisdiction, possession, the restitution of her. The libel for the compel presents determination as Court, of the District subject-matter is an whether suit, yacht article, question imported v. BIDWELL.
De LIMA 9 Plaintiffs in Error. Argument for' 483. revenue laws.” p. within the customs meaning of this than no other filing The libellant had remedy libel. June, administrative act, none under the customs He has ‘the rate the collector as to decision of act, of that By § ’ merchandise imported and amount of duties chargeable . . . owner, etc., unless conclusive, is made final and for review for court brings up provided appeal § as to the General Board of Appraisers the decision the classification the facts construction of the law, respecting thereon and the rate merchandise, duty imposed of imported for review classification. It does not under such bring up merchandise or not; an article is whether imported question ‘deci- of that fact such a under the ascertainment nor, § collector from for. The decisions of the sion’ as provided 14 are which provided only decisions appeals § amount’ of merchan- ‘the rate and duties upon imported charged and decisions to dutiable costs and dise, decisions charges, as to fees and exactions of whatever character. Nor can the court of review which the collector had not pass upon any question no to determine. The collector has authority authority original to make determination article which is not any any regarding and if the merchandise; vessel here is imported question merchandise the court of review would have imported jurisdic- tion to determine matter and could regarding question, not determine the fact which is in issue under the libel very district on which the court, libellant (i. rights e., depended whether question yacht ‘imported merchandise’). the customs Under administrative in order act, libellant, to have benefit must concede that thereunder, proceedings the vessel is merchandise, is the imported very question *8 in contention under the and must make of her libel, put entry merchandise, with an invoice and consular certifi imported cate to that effect, thus himself from estop maintaining which fact he in his libel, that she is not mer alleges imported chandise.” In re Fassett, U. S. 486-7. pp. case has never been principle repudiated quali- this court,
fied and the authority supposed against the learned district was able cite in the Cir- attorney 1900. .10 for Plaintiffs in Error. cuit is the decision in Lascelles v. Bidwell, Court 102 Fed. “ the entire of which as follows': 1004, report reads Las Rep. celles v. S. Bidwell, Court, D., New March (Circuit York, for Motion Charles preliminary injunction. 1900). Henry L. the motion. Butler, Burnett, for U. S. Henry Atty., opposed. circuit Motion denied on Lacomhe, Cruik judge. authority U. S. Bidwell, shank has an Complainant adequate, at law under the customs ad summary, expeditious remedy act.” ministrative “ As the existence of an at law,”, even adequate remedy “ not under the customs administrative afforded though act,” for the denial of motion for an ample ground injunction, act the customs specification at affording remedy was law, the essence of the but in the clearly ruling, nature aof incidental dictum-. It is to be merely hardly sup had the had learned Circuit in mind that, posed Judge distinctly at time doctrine above reasoning writing quoted from the of this court in unanimous the Fassett opinion case, he would have announced his that had a Laseelles impression “ under the customs administrative act,” without remedy giving that so¿ his reasons for thinking essence notwithstanding very “ was that his of Laseelles’ contention Puerto Rico is not sugar merchandise,”-and that this court has held in the Bassett imported that that is a contention which is not raised, but surrendered, case “ mentioned, under the act since,. in order proceedings thereunder, have the benefit of must concede proceedings (one) . . merchandise . and . . . (article) imported the fact himself which he estop maintaining alleges, is not merchandise.” (it) imported As memorandum shows, itself Judge Lacombe denied “ Laseelles motion an on of Cruik injunction authority shank v. U. S. Bidwell, 176 73.” of that case report an shows .that there on was denied injunction ground ” at law was but so far from there remedy be adequate; intimation or that such at law ing any implication remedy had under the customs administrative act,” opinion ato suit the collector as distinctly points against constituting referred to (the remedy gravamen complaint there,. *9 v. BID 11 WELL.
De LIMA in Error. for Plaintiffs on the lack authority part the absolute here, being erroneous exercise of merely authority of a instead collector, vested him): “ de forward,” jurisdiction put The equity sole ground at law remedy is inadequacy clares the opinion, not com is susceptible complete that the threatened injury that the assertion The mere appre in damages. pensation is not Facts injury enough. will inflict hended acts irreparable infer can the court reasonably from which must be alleged we think the and in result, would be particular such was averred to The deféctive. matter dispute bill fatally ‘ teas.’ Con the said teas the value of right import and their known, of these teas was destruc value fessedly at The law. recovery tion compensated by capable being of the act, official collector, character provisions in exe the Treasury Secretary regulations if the would not constitute a defense act were cution thereof n ” was what was There unconstitutional (which alleged). collector would be unable to no intimation respond moreover, section 989 the Revised and, Statutes judgment, suit or that when a is had recovery any proceeding provides done, act be him, collector for cause any probable against ‘ final shall, the amount recovered certified, judgment, ing. out of the from be provided paid proper appropriation 16 U. S. 124.” 110, Cruik Treasury.’ Conqueror, 6 S. Bidwell, shank v. U. nobe that action administrative
There caii an question officer, than that in him in a case other which action is con the statutes his official is as templated by conferring authority, un unauthorized and unofficial as would be action completely der a statute was itself void as unconstitutional.' him more statute would protect personal liability one case than in the therefore, By other. analogy, Cruikshank decision is an instead of for authority against idea that the customs administrative remedy provided by ” one the entire and availa act remedy (or only existing ble at for those cause of action collector whose all) against is not that he erred as details of a customs case, TERM, 1900.
Argument for Plaintiffs in Error. a mere he to act in a which, assumed casein trespasser officially as there has been he inasmuch merchandise, importation *10 no has whatsoever to act at authority all. thus in that the remark the Lascelles case being apparent obiter dictum, dictum inconsistent orúy and, moreover,
with both of the Fassett and the rul- Gruikshank principle of the Court which that court has never ings Supreme (rulings doubted, or leave to submit, we repudiated, qualified) beg all that he was in Townsend, mistaken de- respect Judge in in his Goetzev. United 103 Fed. claring opinion Rep. “ that the 74, had been of preliminary question disposed suit in Lascelles v. at least the sense of Bidwell,” establish- in the act of ing 1890 availability remedy provided in cases in inas which, Lascelles, those of and the Goetze, pres- “ ent one, in very contention,” whether question namely, put “ “ or not the merchandise had been would be con- imported,” ” by under the act. ceded proceedings
On the the clear contrary effect cited, authorities as well as of the principles that the subject, undoubtedly “ ” ” “ “ and the remedy procedure the customs ad- provided by ministrative act June 10, have no 1890,” what- application “ ” ever to cases which (like are not one) present customs at all merchandise (the having .cases “imported”), “ ” in which accordingly, illegality is not an complained erroneous exercise of the collector’s in a in case which authority “ ” he was authorized to act as collector, but the radical illegality involved in his aas mere having, assumed to act trespasser, collector in a case not one of the kind of in case which' alone the statutes and authorized contemplated his officially. acting thus seen that Having defendant inis error in the first of his part as to our theory his notion, remedy—in that namely, procedure the act provided have might been available to for us a decision of the securing issue raised complaint now submit beg that he in is equally —we error in the second of that part since theory, fact point (his argument the contrary the act of 1890 notwithstanding) has not the valid prevented of such an action as the bringing present case (in such as that set up complaint herein) by v. BIDWELL.
De LIMA Plaintiffs Error. and 3011 of the Revised of sections Statutes and its repeal should not be collectors liable for or that on ac- its provision mentioned any matters count connection in. 25 of the act. section from the defendant’s inference the sections repeal “ ” and the from declaration exemption
named liability sue the inference, namely, right 25—the collector § exists—is in a case such as the based longer present upon “ the collector in sue a case such assumption right ” sections 2931 existed virtue of present only by the further that the matters assumption respect 25 declares the collector to be which exempt liability, § ” include matter such as that constitutes the gravamen our Both the essential dis complaint. ignore assumptions tinction this court in the Fassett and Cruiks (recognized by ” hank between matters which are mat cases) customs really *11 those ters and which not at all. to their are such really Owing thus that distinction, both ignoring erroneous, assumptions fallacious the inference based them. making upon Consider, first, the of sections 2931 and 3011. "What repeal amount to? a does that of Simply substitution “repeal” for the in “customs” cases old in new procedure procedure ” “ ” “ Those sections were old customs cases. of the portions ” “ in administrative act embodied customs Title XXXIY “ of which Statutes, the official is collection of Revised heading act duties of 1890 a of revision upon simply imports.” a that Both the and the revision as assume system. original that to have had fact merchandise is been Neither “imported.” or reference- one available to any remedy bearing upon the. the man to be has whose is that who collector grievance happens “ ” in no which, in case to act as such importation assumed not authorized to act he was really been made, officially having ” “ the sections the old of regulating at all. pro- repeal for the to make revised cases, way in customs cedure procedure of not action in right in did non-cus- destroy customs cases, reason that such for the last-named of cases, toms simple right not mere created did trespasser) action by “ (against ” connection with have any not or sections depend mentioned. TERM, 1900.
14 for Plaintiffs Error. of now of 1890, about act What provision § “ for or the collector from his decisions actions liability relieving ”? duties In the 'Fassett distinction, as to customs light as unsubstantial repeal difficulty proves “ sections. the two irrelevant Obviously, relieving or for his decisions actions as customs collector from liability ” Bidwell, mean Mr. B. duties cannot the exemption George ” “ or from for decisions actions the individual, having liability ” “ or to do with customs duties made performed nothing “ has no as there case in inasmuch which, importation,” he did not and or act or sense as, be, could decide any ” “ collector at all. on Indeed, text its face shows the exemption § “ ”.is re- secured to the collector strictly liability thereby stricted to customs means extends matters, protection who, cases, collector, individual customs respect “of determination is not im- article which any any regarding ” kind of determination this court merchandise,” ported in so words many declares has no authority collector to make.” 142 U. S. The section reads as follows: “ Section 25. From and after the effect of this act no taking or officer collector other of the customs shall be in way any liable to or owner, any consignee, mer- importer, agent any or or chandise, other on account of any person, any rulings decisions classification said or. merchandise, duties or the thereon, collection charged dues, any charges, or duties on or. on account of said merchandise, or other any matter or as to which said things importer, consignee; agent of such merchandise under this act be might entitled to appeal from the decision said collector or other or from officer, *12 board of for in this appraisers act.” 26 provided Stat. 141.
This restricts the language clearly collector’s from exemption to matters as to which liability an can be appeal had under the act from the decision the collector. This court held that, has under the act—
“The court of review cannot pass upon any question which the collector had not original determine. The col- authority lector had no to make determination authority any regarding 15
De LIMA BIDWELL. v. in Argument for Plaintiffs Error. not merchandise.” In re imported Fassett, article
any 142 486. S. 419, U. “ can had under the act from In other words, appeal determination the article which is (by collector) regarding any not merchandise.” in a in case which imported Consequently “ is one the decision article which (an) complained regarding the collector is not merchandise” “relieved imported ” liability by §
It thus becomes that the 2931 neither sections plain repeal nor the 25 of the 3011, act 1890, exemption provision § the valid de- of an action the really prevent bringing against fendant his Bidwell, case collectorship, notwithstanding the determination one which, where was because complained an article which was not merchandise, he imported regarded “ had no to make.” authority true, It is that in his brief indeed, Circuit Court district to this court a learned attorney categorically imputes with this we inconsistent conclusion; decision respectfully he was mistaken. insist that demonstrably “ citation reads: In case Hendricks His Schoenfeld Fed. in this S. 57 691, 568, U. Rep. (152 affirming circuit), ‘ also held maintain an action Court right Supreme to recover collector duties whether ex paid, at law against ’ or common law the statutory virtue of was (sic), isting and 29 of the customs administrative sections taken away by ” 1890.’ act of June ” “ Court fact held matter of the Supreme nothing As “ ” not hold common did law certainly sort. law an action at collector” against to maintain “right “ 25 and section 29 section customs taken away in the brief between administrative Though appearing act.” itas is above marks repeated), language (precisely quotation ” “ nowhere holding appears as embodying supposed given “ ” in the headnotes in this either court, the case report On the or in the opinion. contrary, opinion affirmatively ” ” been taken to have was held away by shows what of action apt the-statutory against of 1890was right simply then under sec- until existing a collector customs (in cases) *13 16
Argument for Plaintiffs in Error. 3011 and 2931 of the Revised (152 tions Statutes U. S. 693); “ ” while the reason for common law of action holding right in such a of unavailable case Schoenfeld’s course all (which ” “ that intimated, obiter, held even in the Schoenfeld is that indicated in the statement following decision) “ We are of that this action would not opinion 695): opinion (p. lie at common law, section money being required to be In into the the reason thus paid Treasury.” light and on the ratione cessat given, lex, cessante legis ipsa principle it is clear decision holds principle Schoenfeld “ in cases to which section only 3010,” requirement “ the can money ... be into the itself be Treasury,” paid held to Can that held to apply. requirement sanely apply “ ” any customs cases ? Look the text of the enact- at “ ment in col- 3010. All any money paid Section question: lector of the or to customs, such, for any person acting unascertained duties or for duties under paid protest against rate or amount of duties shall be to the credit charged, placed of the held Treasury shall not be the collector or as such, to await ascertain- person acting any ment duties, the result litigation relation to any rate or amount of duty legally chargeable collectible any case where is so money paid.” “ section, This of Article being part XXXIY, on Col- lection of duties would imports,” presumed apply “ to cases in which merchandise had been in fact imported.” Furthermore, very wording provision affirmatively “ (cid:127) ” shows which the only money collector in Customs gets “ cases that he is directed to proper credit place Treasurer.” The direction for immediate into the payment is in so Treasury words to be many made order explained “ ”— prevent held the collector to await being money “any ascertainment duties, or, result what? — in relation to litigation the rate or amount of charge- duty legally able,” etc. “ in a Now, case in which there has been, fact, an impor- ” tation of merchandise, the collector has authority, statutory for the purposes performance his functions, decide
De LTMA B1DWELL. Plaintiffs in Error. all instance, the first involved in officially, questions as- ” and the certainment duties determination of their rate *14 ” is in and he such amount; cases authorized to receive “duties” before definitive paid or “un- “ascertainment,” paid der rate or the amount of duties protest Such against charged.” “ ” duties,” and duties such duties the amount of which —“ “ ” either not has been ascertained at not or as- all, conclusively certained as the against objection under importer are, the — “ to be on 3010, at once to the credit of the receipt placed § Treasurer.” Where the essential fact” exists, “jurisdictional anof actual from a the collector’s importation country, foreign errors as to do not details make his acts or unof- unauthorized ficial, and his therefore collections, to revision, though subject deemed valid and been as made provisionally having authority Government, therefore well be the of such subject a as that as to provision the pay- § the into But in ing a case in money Treasury. which has there been in fact no at all the individual who importation “ ” holds the office collector has at simply all,' authority his been there has an erroneously holding importation him does not or convert an exaction of authority, give money him into an official authorized theory collec- ” “ “ as be deemed be tion duties such to either can the unas- “duties duties or the under certained” paid protest against or amount of which rate duties which charged,” (and alone) to directs the collector deposit statute As Treasury. this “ case, has said in the The has no court Fassett author- collector to make article determination regarding any ity In such merchandise.” 142 U. not S. 487. there- imported ease, “ he is if a mere he as if for fore, exacts du- money trespasser ties,” the law cannot be have supposed contemplated any nor, therefore, such to have for trespass him, provided ” “ into thereof. paying Treasury proceeds “ 152 case, U. S. 691, was fact customs” Sohoenfeld there an case, been of merchandise. having importation had sued for there “for duties money under paid paid amount of etc. To as rate or duty protest charged,” money in that case, paid consequently, provisions collector
von. clxxxii — 2
Argument for Error. Plaintiffs sec. applied. appropriate, literally entirely it did: “We are the court as therefore, say, opinion not at law, action lie common money that this would being To read 3010 to be into sec. Treasury.” required by paid from to a case different this intended to materially apply n ”(cid:127) case at all) customs case itself (as being Sehoenfeld would dictum,. it which would be obiter a sense clearly give of this Nor can it maintenance validly urged against sec. 3010 that, whether thereto action, compelled not, this he did was a customs defendant, case, supposing did in and his fact here money deposit question, having him should done so have the same toward effect exempting as it would have had in to which séc. 3010 a case liability ap vol In first actual,” plied. though place, supposed *15 record, into not the the does untary, payment Treasury appear by to be and is not it ex not presumed, hypothesis required being, law. the reason a the re by Secondly, moneys why deposit sec. 3010 to be the by collector from quired deposited exempts is this, personal liability simply by very requirement the collection as its own and adopts act, takes as to the agent’s place ally litigation such col propriety “rate and lection This reason (as respects amount”): obviously does hold where the act not collector’s is one is which wholly “ and unofficial as unauthorized, one an article being concerning which not is That merchandise.” his imported acted in having fact faith, good deposited money is Treasury, “ ” in law a not bar to a him judgment against (as distinguished from an clear execution) made entirely by explicit provi “ sions of section Revised Statutes, which was not re ” the law 'of on-the pealed by 1890, hut, has been dis contrary, court in cases much tinctly recognized later than by 166 U. S. case, Cruikshank Conqueror, 121; Schoenfeld Bidwell, 176 U. S. in full force being operation'. reads as : follows Sec. a "Whenever is had recovery any or a suit collector or other officer proceeding against rev enue for act him, done or for the by recovery any money or him into the paid exacted him by paid Treasury,
De LIMA v. BID WELL. for Plaintiffs in Error. of his official and the court performance duty, certifies that there was cause for the act done probable collector or other or that he acted officer, under the directions of the Secre- or other officer of the tary, proper execution Government, shall issue such collector or other against officer, the amount so recovered shall, final judgment, provided out of the paid for the proper appropriation Treasury.” It would seem to be contradiction that beyond this section— “ “ which is in force as quite clearly section or 3010,” act of 1890 of the law to distinctly proves be to policy per ”— “ “ inmit, some cases, ae., recovery” judgment) against {i. collector . . . for the recovery exacted any money to him and him paid into the paid Treasury” (though “ execution to issue and the final against official, judg ment” him is to be out against if the paid Treasury, “ court certifies to cause, In probable what etc.”). sort of a case could this find provision scope if not application in a case such as the in which, the article not present, being imported the intervention of the merchandise, collector was un wholly authorized and therefore unofficial, instead of being er simply roneous as to In teeth of details ? this statute, declared in case to be in force, Cruikshank seems impossible insist that the collector’s into the having paid money Treasury ” “ “ inis with the any way incompatible recovery final ” him therefor. judgment against II. It is not true that does not complaint state.facts suf- ficient to constitute a action” cause of : a. Porto Rico June not, September, 1899, a foreign ” within country of that term as used in meaning the Tariff *16 Act of 1897 of (under and of which, authority alone, the defendant claimed the to collect as duties the right sums men- tioned the complaint).
b. Even if—in denial of the contention —the foregoing Tariff Act of had to be construed in as fact to author- purporting ize the collection of duties on from Porto goods Rico brought into New York in June or September, 1899, then, aspect of it, to that the act in extent, must be held uncon- question
Argument for Plaintiffs in Error. of and ineffectual to exaction stitutional the complained justify in this case. “ ” “ o. such cannot save and collect” duties Congress lay “ as are uniform the throughout United States.” “Duties” Eico
d. collectible “on Porto goods brought into New York in June or have been would 1899,” September, duties not uniform Porto States”; the United throughout Eico with been,.ever since the of the treaty ratification having the United the Spain (antedating period part question), States.”
Treaties the make to the United States “ceding” territory so within the “ceded” a of the States part uni- Constitution meaning provisions of duties United States. formity throughout ” with to the United ceded Porto Eico treaty Spain States as became effective date (a date when such treaty There was here nothing antedating question). period present treaty postpone suspend operation one which island, the’ circumstance—the only cession has effect—that (the treaty) provides suggested the civil rights shall political that the determine and that ceded islands inhabitants status of native in which to one inhabitants have year Spanish-born their or abandon choose allegiance Spain. whether preserve under the Constitu- whether These cases the question present tax mer- to impose tion the Government authorized the island York from into New chandise the port brought the United the cession of that island Eico after Puerto formal ratified treaty, duly proclaimed. on authority a tax has been here imposed supposed Such ofAct 1897 (Dingley Act). Eevenue Customs of a customs imposition Act The Dingley provides and notwith- countries, from foreign on imported duty sugars island of States of the standing acquisition of December 10,1898, Puerto Eico under Spain on the 11th ratifications of which were exchanged day April, York exacted the New pay- collector port *17 v. BIDWELL. De LIMA Plaintiffs in Error. duties on into of customs said sugar brought port ment of and in the months June J uly, 1899, Rico though Puerto from a it had been foreign country. imported examination of we submit the question As a basis for following propositions: A entered into is has the force of law,
A. treaty duly until enactment. statute superseded subsequent Rico to the of Paris ceded United B. The Puerto under the Puerto Rico then came sover- States. completely and dominion of States. The the United eignty political map world was became Puerto Rico changed geograph- of the United what Marshall called States, or ically part “ name of the American under the Porto Empire,” statutory Rico. C. The clause the determination treaty leaving ” civil status the native inhabitants to rights political
“ merely declaratory power given by Constitution to withhold and franchises and to political rights establish civil and enact law in all government municipal places where no state exists. government
D. All territory taken under lawfully acquired sovereign is a of the United States. jurisdiction part E. The Constitution is a charter or conferred grant powers the Federal Government people States. The Federal Government has no existence outside of this Constitution. Hence it is a confusion of terms speak to which the United States has as not title acquired “ ” within our constitutional being boundaries or incorporated into the United States. It is a of the nature misapprehension of our institutions and of the function of law our organic national existence, known as the Constitution,” speak of the nation any part boundaries, being beyond speak ” of its extension over or over all of national ter- portions There other than ritory. boundary Constitution the whole of the Federal Government. sphere activity Outside of that the Federal Gov- sphere; boundary, beyond ernment can force— only'act by usurpation government-of —a not of law, officials to act for the assuming TERM, 1900.
Argument for Plaintiffs in Error. of the Constitution are, outside of the however prescriptions *18 of the law. well outside intentioned, rule of F. This is the constitutional functions. elementary because that, it does not follow all its But finds government in the constitutional sole authority grant, every prescription its the Constitution, and delegations, limitations, prohibitions at can all be to all made always places govern- applicable in all ac- mental action circumstances. are These applicable and circumstance. varying place cording that the is unquestioned proposition government power- to act outside of the less charter of of ne- its existence does not that the Bill of cessity against imply Bights prohibition —the cruel and unusual at once punishments operates throughout — over which States the Government of United any territory exercises transitory, permanent. jurisdiction military, — held hostilities military G. by occupation Territory during to the rule of thereto is the President an incident subject or as under the No in Chief Constitution. limitations as Commander in his as Commander save such Chief, power placed civilized But e., .to warfare. as must . wage implied—i. does not arise from the from limitation inapplica- freedom on the it Constitution; of the restraints contrary, bility Constitution, in him, by gives is freedom granted commanders the usual war, military recog- case of powers law. international nized by the law or by
II. treaty-making power, Territory acquired United sovereign jurisdiction hence under coming Executive until States, Congress under- may governed it. takes govern rule as war lasts the Executive continues his
As military long in ratification of the Commander Chief. Upon he continues his rule under his duty general peace but as a civil laws, to execute pending government, defacto action of for the of the new territory. Congress government apy. authorities doctrine was followed political This v. Har- and was defined and' Cross California case upheld (vide to.the' Judge Magoon, legal rison opinion adviser 56th 1st Doc. No. 594, Sen. Cong., Sess.). War Dept., WELL. De LIMA v. BID for Plaintiffs Error. the new event the United part But definite powers given under organization pending to Congress. and de civil ceases status I. As soon as the military facto officers, the civil rule even on, is carried by army
government to the constitutional it is reestablished', subject require- being subdivisions of the are but ments. These territories political States.” Congress supreme dominion of outlying it has all for them; powers people legislating have' been .as such expressly except the terms of the Consti- denied implication prohibited tution. has
J. Within or limits those supreme prohibitions are its however, These limitations power. “ prohibitions, constitutional outside of which boundaries,” go. *19 The therefore, is: only question,
Has these Congress ignored prohibitions gone beyond these limits its of Porto Rico other ; words, government violated the constitutional restrictions which lie at the center and foundation of the Federal ? powers
K. The Act in terms a on Dingley imposed im- duty goods from countries. It could have no ported foreign application from Porto which ceased to Rico, be a goods foreign country the ratification of the it to upon the United treaty States. ceding To it to Porto Rico make it would obnoxious the con- apply stitutional Section I, (Art. prohibition YIII) prescribes all duties, taxes, and shall be uniform imposts through- out the United States.”
The tax was levied at the of New York on port sugar Porto Rico. No tax was leviable like merchandise from other United States. This is the'uniform part taxation the Constitution. required by
This was enacted as the legislation by Congress lawmaking for the whole body United States and affected every port United States. It was not local tax or excise the benefit of a particular locality.
L. The adduced from our precedents former acquisitions do not militate this view. territory against 1900..
Argument for Plaintiffs in Error. M. The inhabitants ceded territories are citizens of the in the sense in United States which all persons immedi- owing ate and complete allegiance States and inhabit- are citizens. In that sense the word ing citizen is of “national” See equivalent subject. Senator Fora- on Porto No. Eico, ker’s 219, Feb. report 5, 1900, p. N. While the from the argument is not consequences always the bést it is in this argument, im- perhaps case, to its owing relevant. portance, construction consequence contended for to the.Government is the
.which duties clause. objects uniformity the- other All secured to citizens and rights within the others United States the Constitution prohibitions granted by feared admittedly applicable. danger possibility the American markets thrown open being products of the ceded It is not an territories. which the court objection can take into consideration in this case. deciding treaty
I. Under Constitution IS THE SUPREME LAW THE OF LAND.
That,
has never been dissented from or doubted
this proposition
It would
known.
not be
court is well
dis-
in this
necessary
it not for. the fact
it has
been
cuss it now were
recently
doctrine has been
asserted.
and a novel
broadly
challenged
is a mere contract between two
claimed that
has
treaty
the United States until
as law within
nations of no effect
given-
in other
words,
act of
such effect
Congress;
as an international
force save
obligation.
legal
court. The
This
cannot appeal
question
suggestion
*20
without
of
was settled
clearly,
possibility
equiv-
positively,
”
“
ocation
the Great Chief Justice:
“
treaty A
a contract between two nations,
is
its nature
act.
...
In the United States a different
not a legislative
is established.
declares a
Our Constitution
treaty
principle
to-
be the
of the lahd.
It
is,
regarded
.law
consequently,
wher-
of
to an act of the
justice
courts
equivalent
legislature
it'
of
without
the aid of
itself,
ever
any
pro-
legislative
appears,
C.
Foster v.
J.,
Feilson,.
Marshall,
visions.”
Peters,
v. BIDWELL.
LIMA
De
Plaintiffs
Error.
in its
A
it is
a contract be-
true,
nature
treaty,
.
.
.
and is often
in its char-
nations,
two
merely
tween
promissory
its
into
effect.
acter,
carry
stipulations
legislation
requiring
own force and
of its
relates
.
.
.
If the treaty operates
can be deemed
within the
Congress,
subject
of a
act to be
legislative
repealed
particular only
equivalent
modified at
In either case,
the.
Congress.
pleasure
last
will must control.” Chinese
expression
sovereign
Exclusion
II. THE TREATY OE CESSION PORTO RlCO A BECAME PART OE States. of Paris ceded By Porto Spain Rico to the United such we cession, submit, Porto Rico became a known part political as the entity United States. It is now claimed, as we believe for the first time aby court the United States, that come under the territory may and absolute complete dominion of the sovereignty States and remain yet foreign. Townsend has held in
Judge the case of v. The Uni- Goetze ted States that the title to the soil of although Porto Rico is in the United States and no other has country there of any rights character, Porto Rico yet was, subsequent treaty, within the foreign country the statutes of the Uni- meaning ted States, duties imposing goods coming foreign countries. which this reasoning conclusion is reached *21 TERM, 1900. 26 Argument for Plaintiffs Error. that it will a close important so novel and. examina- justify
tion. the title soil became de He cession says: By jure, islanders as and so in the but in the status of the foreigners, no was to be of Porto Rico as status foreign country- change until determine its 103 Fed. made should character.” that.in all of terri- “Thus we see cessions 17. previous Rep. for incor- there has been treaty special provision tory States. Whether a the inhabitants within the United porating sufficient territory would incorporate treaty stipulation . . . There is into Union is not established. (in clearly for the of the in- treaty 1898) provision incorporation habitants within as there the Union has always prior n treaties.” has been found, then, Fed. 76. “There Rep. no reason either the United States on authority why principle not without should accept sovereignty admitting over it as an it bear the bur- Union integral making part uniform taxation our nation. To den throughout deny to the nation an is to attribute deny important 103 Fed. etc. Rep. sovereignty,” contain the The sentences reasoning Govern- quoted believe, we which ment, and, fallacy their position fallacies are endorsed is based. These General,. by Attorney brief, in his 4: who Goetze p. says “ That the President and the Sen- treaty-making power—the ate—as evidenced did Paris, language treaty to make Porto Rico intend and the Islands Philippine but intended in several integral parts par- ticulars to reserve their final status Con- adjustment at 8: And There is no doubt that was the gress.” page intention of the Paris not to make the ceded islands of the United States.” part
The Government of the as to United States sustain three relations: given territory jurisdiction. (1) Sovereign terri- soil. (2) Temporary occupation Foreign foreign (3) over which it has no tory jurisdiction.
In last case it has no relations with the inhabitants; it is second the de over certain ter- merely sovereign facto BID WELL.
De LIMA V. in Error. Argument for Plaintiffs affect under the Constitution cannot this sovéreignty ritory; of the inhabitants since status allegiance *22 the political anas and only States is but to the United owe temporary they the re with' former their reverting incident of war, allegiance States United Case, turn of Castine sovereign. the former 615. 9 How. v. v. 4 Wheat. Rice, 246, Fleming Page, Rico, of Porto that is the the first In case, position Politi- status plenary. over political power Congress taken away by cal are franchises which given may rights which it has over i. territories, e., places Congress 15. 114 U. S. Ramsey, v. exclusive local jurisdiction. Murphy endeavored referred The treaties to which Townsend Judge ceded by provisions status the countries settle political as possible, that should be admitted into the soon Union General and the (Goetze brief, Attorney p. 66) emphasizes position. the inhabitants of Porto Rico
Granting civil nor neither that did not make acquired political rights, yet Rico a Porto country. foreign
A is a under a foreign other country country sovereignty (cid:127)than that the United States. a “By foreign port a understood within the dominions of a port sovereign foreign and without the dominions of the United States.” Mr. Justice in United v. 2 Gall. Heyward, Story 501. See also Chief Justice 19 Parks, Johns. Spencer King 375. Also Trea- sury Regulation Stairs v. approved Paislee, How. 526. This Porto Rico was not. admittedly
What Townsend meant, until Judge then, simply had the inhabitants legislated, had no rights, political and their or civil private rights remained unchanged. of the inhabitants within
Incorporation the United States if means, that the inhabitants shall be made anything, part i. enter the body union politic, e., as was in- State, tended the case of Louisiana, which we shall hereafter ex- amine.
This is different from very making territory part is all the case contends for. present The fact that the inhabitants ceded country by treaty TERM,
Argument for Plaintiffs in Error. the United States are still under the of the military authority Government action a local awaiting Congress organizing from the as to government whether entirely apart question color territory, status, in- regardless race, is a habitants, United States. part Let us assume that Porto Rico was inhabited In- by roving dian tribes had no other it be inhabitants, could contended we had title to the although Indians be- acquired soil, tribes which were while not, their tribal ing rela- maintaining tions, citizens of the United States, therefore was a ? question foreign not. country Certainly As the General Attorney Goetze 6: says, brief, The basis p. of the custom laws is not ownership, (1) geographical origin shipment, nature of the (2) goods.” The learned and the General confusethe judge Attorney idea *23 of and thus the boundaries acquiring territory, of the enlarging United with the withholding political They rights. make the other. clear This is from the one depend upon that the the Goetze United States case) expression (in “may without it an (the admitting accept sovereignty territory) If an of the Union.” integral part integral part i. ae., Union he means a we assent to the State, political part, proposition.
The Union is in the inhabitants of the of the political power have none. States—those of the Territories into of new our territory incorporation body politic would of the inhabitants into and must mean the incorporation our of the i. into States. e., political people people
This do not contend for. we Had been said in the as to the nothing inhabitants, treaty their their status and within certain limitations civil political would have within the rights entirely Congress. In treaties States had United previous territory acquiring that its inhabitants usually country should promised ceding have admission to statehood. .
This had been the usual course. In the instance Government, present desiring American of the should left to disposition question entirely v. LIMA BIDWELL.
De for Plaintiffs Error. rain from satisfied ref was not to prom- negatively the Congress, that no should but, order misunderstanding ises Spain, with that Con- future, Spain occur expressly stipulated have been It would determine these should questions. gress Rico that her Porto for to have ashed subjects Spain proper States. the Union should admitted incorporated matter to the United not do but left the did so, absolutely She States. States free to clause in the
This then left United to the inhabitants always deal as she subject chose— of the Constitution. prohibitions di- over Its thus is emphasized, sovereignty minished. all the III. Effects fallacy underlying Annexation. counsel learned court below,
reasoning reason- Government, seems be based following ing: have v. We authority Fleming Page, acquiring title soil the territory making part does not it within the other nations bring States as regards it not then, Constitution. soil If, acquisition sphere our constitutional what does accom- boundaries, which extends order extend the boundaries % In this result recognized plish of dominion the extension other nations, acquisition sufficient.” within the the Constitution sphere
To of soil coming speak misuse of held, to be a us language. seems where the armies of held, Fleming Page, rightly held an extent of overrun, had United States conquered, *24 that the United States' other nations would recognize territory, in and over such Government territory. was defaeto law rule of international which we do an-elementary is This not question. was not
This occupation, acquisition. over which the authorities How the country to be de government organ- had established States facto international law with which is and question governed, ized of the United States the Constitution Under has concern. for Plaintiffs in Error. has and the Government war out all power wage carry and incident necessary the duties of such war. waging it it is foreign territory When so in occupies doing pursuance to it of a delegated by and Constitution, while the power does as such not affect the -Constitution or soil over territory which the United States exercise troops it is jurisdiction, by th¿ reason contained in grant power Constitution that the United are there troops on carrying legitimate and not mere warfare, adventurers revolutionists. ' What means the learned by judge bringing of the Constitution we do within the un- sphere exactly derstand. If he means that our there is not exercised in jurisdiction claim, we that he is Constitution, incorrect
pursuance If, however, his of constitutional law. he means that postulate is and that jurisdiction temporary military jurisdiction, only in- to the bill of clauses of Constitution regard rights do not and cannot and of taxation we accede apply, uniformity to his view entirely. confusion his seems arise from want of reasoning of the fact Constitution both to
appreciation applies and war. That there so to a Constitution is, for speak, peace one war. peace
This is -no new but was theory, clearly expressed ably John in the Adams House of in 1836. Quincy Representatives He said: “ There then, and in are, the Exec- authority utive, two classes of different in their nature powers altogether and often with each other —war incompatible power peace is limited power. restricted peace power regulations in the Constitution itself. The is war provisions power limited of nations. This tremendous. usage power breaks down barrier so .constitutional, strictly every erected for the anxiously and of life.” protection liberty This war is, then, unlimited, limitation except by from the Constitution that .implied fairly war allowed to be shall be civilized is to waged warfare; to-the warfare rules say, according regulations recognized *25 v. LIMA BIDWELL. 31 De in Error. Plaintiffs as known warfare by not practiced civilized nations, on such warfare That carrying Zulus. tbe Apaches world the Government law of with accordance public exercise temporary has States right of the United is un- nation to another over territory belonging jurisdiction is must remain however, That questioned. jurisdiction, or law-making power until either treaty-making temporary, of the Government has acted. the ter- cannot said, enlarge President,
The
as Judge Taney
natibn whose
The
States.
ritorial boundaries of the United
have
we
tempo-
we are
and whose
soil
occupying
jurisdiction
a'
law
'in
right
ousted has what
be termed
private
rarily
might
withdraws
troops
and when the
States
reverter,
United
to the nation
the world
belongs
recognizes
sovereignty
“
not
be en-
could
The boundaries
dispossessed.
temporarily
on either side advanced or
or diminished as
armies
larged
9
615.
v.
How.
retreated.” Fleming
Page,
court
and here
think the learned
But,
we
Goetzecase
if the law
failed to
or
distinction,
appreciate
treaty-making
enacts that the
over which the
arm of
military
power
has extended shall come under
Government
permanent
absolute
of the United States,
sovereign jurisdiction
then, and
United,
then
a new and different status arises.
only,
it is
extend
true,
its boundaries
by conquest
.
.
. but that can
done
treaty-mak-
or the
and is not a
power
ing
legislative authority,
part
conferred
President
the declaration of war.”
Argument for Plaintiffs in Error. which made sovereign people Government gave *26 it certain as government and withheld from powers it others. "When, the Government of therefore, the United States was in Porto in in Rico, Cuba,.and the war Philippines during it was because the Spain, Constitution it the gave right war. The constitutional wage boundaries, if the therefore, be claimed' to have we phrase must insist any meaning, again can mean the entire only within which the sphere activity Government moves.
We here contention of repeat the Government: “ In order to extend boundaries other nations recognized by the extension of dominion is sufficient. by To extend conquest constitutional there boundaries must be some of or extension law to the inhabitants or ganic institutions over the territory. of the sphere Constitution is determined application land, considerations title to by bv recognition po ” litical status of its inhabitants in the Goetze (opinion or, case); contention, as the the same General Attorney phrases “acquired as bound nor that neither instrument by privileged [is] its either until within in express brought operation by compact act of Brief. p. treaty Congress.” our and between The difference position reasoning and the General is and learned fundamental Attorney judge admits no compromise. we from the correct,
If were in Porto Rico they down to the recent act for island that government peace without constitutional authority.
If this be our Government officers had no so, warrant Constitution, their however and, acts well-meaning in law mere been, have were they they might they usurpers; without the were without acting authority law. the law. sovereign creating that the title the soil came
Granting rightfully under its domin- that island was States; completely ion all its island and all its jurisdiction, agencies actions there were of the Constitution. pursuance mean—and this we we desire to make this By point very us that seems force has led to (cid:127)clear, misconception LIMA WELL. BID
De for.Plaintiffs Error. under the decision consideration—that underlying the fallacy in Porto of the Government Rico had the acting the agencies Constitution, powers conferred powers were to all its there subjected applica- in their actions restrictions, prohibitions, delegations. ble limitations, theory. The clear annexation effect IY. The extension to be avoided above sought theory as shown point to certain and not to extends places the Constitution others. has-been a premise extension of the Constitution
The so-called based. This reasoning much has reasoning is a to be fallacious, misleading believe because premise we one. cannot extended such is that Our claim the Constitution ” “ extension is a mis- of the term This use legislature.
nomer. of the constitutional
The cases the pro relating application in the District Columbia in trials vision regard jury in other cases now in have discussed Utah been fully pending thus do here would involve and to so endless court, before this we refer are the cases to which following: repetition; v. ; Wilson, S. 145 Callan States, v. United 98 U. 127 Reynolds Thomas, v. 166 U. Bauman 707; S. S. v. 540; U. Springville 343; v. S. Utah, U. 170 U. Ross, 548; 167 S. Thompson Capital American Co.v. 1; Traction Co.v. U. S. Publishing Hoff, U.S. 363. These Jackson, 166 S. Black Fischer, 464; U. in cannot make law violation cases decide that any Congress of the Constitution. prohibitions In the conclusion that these cases order, however, to avoid that settle the Congress legislating authoritatively proposition limitations con- for Territories is bound by expressly counsel for the Govern- in the the learned Constitution, tained cited had ment claim that in all the cases legislated i. the Consti- e., extended Territories, that Constitution into the action, in force tution. there by Congressional Hence was decided. cases to were referred properly this no- theory that with one exception is true possible olxxxii —3 vol.
3á
Argument for Plaintiffs in Error. where foreshadowed these decisions. are all on based They itself, Constitution not the Constitution act of Congress. un- criticised is Passing objection, however, position sound for the reasons: following If the Constitution is in the Territories as an act of Con-
(1) it is a mere law, can be recalled whole or gress, part the same it. projected The Constitution is a (2) constitution or creation of a govern- not a laws ment, system applicable particular territory. The Government created over has certain thereby jurisdiction but Constitution affects indi- territory, only territory of its because the Government. To ex- rectly operation upon tend the not Constitution establish a does govern- ment for the It can be modified, territory.' changed, abrogated —it cannot be extended. The Government which it has ordained march rule all the may, time, but earth, peoples Constitution would extended —the same Gov- thereby ernment extended its dominions, would have the Constitu- tion would be instrument the same same operating way, viz., the Government. and the acts for Territories Eevised Stat- (3) organic
utes enact that no law shall be for in- Territories passed consistent for the with the Constitution.” Assuming argument correct, contentions counsel the Government are to the effect made the Constitution for and can only of the United we States, the States must then apply read into all clauses of the Constitution general prohibitory the word make no e. shall law g., Congress respecting an establishment of within the States. religion *28 No shall held a be to answer for or person otherwise capital ” “ infamous crime the on a within States unless etc. presentment,
Thus read there would have been inconsistent with nothing in Constitution the laws held unconstitutional in Callan v. or v. Wilson, If the Thomas. was al Springville Congress lowed Constitution enact for the trial of laws capital cases without in the then such laws are not in jury Territories, consistent with the Constitution. truth is that The legisla on this was of its tion point merely Congress declaratory LIMA v. BIDWELL.
De
for Plaintiffs
Error.
were
knew
laws
It
that
prohibitions
violating
own powers.
”
civil
the Constitution wherever
government
with
inconsistent
views of the learned
General
Attorney
If
prevailed.
was
merest
be-
nullity
correct,
legislation Congress
are inconsistent
laws declared unconstitutional
none
cause
novel
read in the
of his
theory.
the Constitution
light
a
submitted that
is
establishing
It
respectfully
act de-
Territories and
an
in the
organic
enacting
government
out of abundant
of the local
used
legislature
powers
fining
a
cited
one
scheme,
complete
caution
part
language
was
declaratory.
which
merely
portion
in the
a
substance.
is
Constitution
physical
what would
termed,
of a
or
nature
private
power,
grant
is a
A real Constitution
grant
law,
attorney.
cannot be
sovereign.
sovereign
powers
rights
of all law.
Matthews
for he is
source
limited,
Judge
.
It was our and the contended long period history, during in our finds that the day, contention adherents sovereignty Union, States was they, not the created the Constitution. States, and people, case of In the McCulloch Wheat. Maryland, great one the ablest advocates of was it argued by theory was the acts of the created Constitution sovereign Chief met the States. Justice Marshall proposition independent answered it. of a as was He To the formation such the Con- said: league the state were certainly federation sovereignties competent. to form a more union,’ ‘in order Hut when, perfect into an this alliance effective deemed necessary change gov- di- ernment, sovereign possessing great powers, acting on the the necessity referring people, people, rectly *29 Argument for Plaintiffs in Error.
and of its was felt powers them, and ac- deriving directly all. knowledged by :tThe Government of Union, then (whatever might the influence of this fact on the and truly case), emphatically of the In form and in it government substance em people. anates from them. Its are them are powers granted by be exercised on them directly and for their benefit. “ This Government is all to be one of enu- acknowledged by merated powers.”
The limitations of the Constitution the Federal Govern- upon not ment are limitations the American nation. upon The American nation is sovereign.
It can it can act where it go wishes, wishes, where acquire where it treat the as it wishes, wishes, inhabitants are limited force which powers physical to bear other brought against sovereigns.
But the Government is not sovereign. we desire to submit that a deal of
Again respectfully great which our is based opponents rely upon reasoning upon this salient That the fact: inability distinguish people and that United the Government is not, sovereign, our constitutional law from fact which distinguishes great civilized nations that of most of Europe. from and a
It was a great improvement departure upon great law and institutions which science political us a nation, It did make as the had it. crippled preceded but a nation that has General permanently Attorney suggests, its own itself usurpations agents. protected against the United States is to be denied below said: If The court it must be admitted that this common attribute sovereignty, but if our nation unconstitutional; is so far Paris treaty other then nations, in common with has this power is valid.” find this confounding we
Here, precise fallacy, again, If Government possesses the nation with the Government. before then there is nation, all.the question powers the court for decision. nations states certain that because other
To state possess De LIMA BIDWELL. in Error. Plaintiffs States must them, the Government possess
powers *30 an one, absurdity. a nation be crippled or the nations referred to and the the other difference between of officialscon-. in those nations body States is United all are endowed people stituting government can take of the state or sovereignty. They the powers can mode law; due they try any without process property the freedom can abridge desire; they which they may which we are accustomed all those can violate they rights press; inalienable. to call sacred and do all these can United things, States sovereign people them, to do were allow their officials
but they unwilling be- their have they until ideas shall so longer changed, limitations these fundamental, certain or lieve rights important there. remain Government will doubtless upon placed - called the But from this nation argue sovereign States less than other or cannot nations, is any powerful United submit, course or we desire, is, policy may pursue due to failure to the basic elements of our consti- appreciate law. tutional “ soil,” The de to the title the learned jure says judge, States, in the but were United inhabitants to the foreigners for Union, had no duties provision uniformity ap- there.” plication
If to the Union he means by foreigners without persons polit- then ical we rights, Citizens acquiesce proposition. in the United District residing Ter- Columbia or or Oklahoma, abroad their ritory lost residing having, residence within the States of are Union, then foreigners the Union. if not-most, of
Many, Constitution may provisions is true Pico, inhabitants of Porto but this inapplicable inhabitants of the States. Aliens of all many races, whether or Aryan Mongolian, inhabiting in this sense be certain the Unión, they foreigners yet possess which the Government cannot Wov. (Yick rights infringe Hop kins, U. not S. because those were enacted 370), provisions because inherent in them, essential limitations TERM?
Argument for Plaintiffs in Error. existence of the American very Government.” Secretary-
Root’s of 1899. report
The Constitution does not act of' directly upon people Porto Rico or the United States.
It is the Government that the Constitution acts directly. The officers of the Government cannot take within property the District of Columbia without due of law. can- process They aman in the try Territory Oklahoma without indictment and trial jury before a grand and with the other petit jury known to the common safeguards law, and the individual yet whose is so property protected the District of Columbia, whose life is so safeguarded Territory Oklahoma, may not be, and often not, a citizen either in the general polit- ical sense has no direct relations to the he is Constitution; an inhabitant of the United *31 and such States, sub- (temporarily to its he is to certain ject jurisdiction) entitled because rights the of the chosen United have certain people place limitations on the Government. his take without due of law may people property process without a if him so desire. jury, may try they They they and until
have elected to do terminate that otherwise, elec- tion he immunities the action of the Govern- against possesses ment.
In are certain within other there which the words, spheres normal Government, at least under circumstances—that is reason of tread, those inhibitions in the say, by peace'—cannot has or what Constitution. The inhabitant bet- may rights, the ter at least from Government im- called, viewed 'standpoint, munities.
While status lasted the limita- military prohibitions tions of the Co- did not Istitution apply. law is will is to it
Martial commander—that say, is no while law and, therefore, martial existed virtue law— Constitution, Porto Ricans had thereunder rights because the Constitution them none. granted
It is this immunities on absence of inhabitants part under the dominion territory the United States sovereign the existence which the learned military government during v. BIDWELL. De LIMA (cid:127) Plaintiffs in Error. he Ricans when Porto in mind had speaks judge apparently did The Constitution not to the Constitution. being foreigners, the mili- because aegis; during them protecting about spread did not limitations apply. usual itary period whole to action not as a every does apply The Constitution Wherever and locality. in every particular Government clauses or some under provisions it is however acting acting, others. not be affected law and.may organic two broadly in our words, system, speaking, in other are, There Mili- the Constitution. (1) kinds of permitted government of all immunities, which means suspension tary government, This turn be may the normal or Constitution. peace (2) Federal, two viz.: (I) divided into portions, properly between the are divided local which powers government Government (and and the General or state governments to the Government Constitution applies greater portion or that local, in this Federal (II) capacity); government which no exists. Territories state places government all As has a territorial which government powers as Federal Government, therewith together possesses the state all the save such governments possess, powers inhibited to both may expressly governments powers the Constitution and reserved Bank v. Nat. people. 101 U. S. Yankton,
But a curious has been advanced. con- sophism recently that land be within the tended may sovereign jurisdiction the Government unlimited exercise jurisdic- it, tion that such over land or yet territory *32 assertion, of the United States. is difficult combat this is a it mere basis what- because assertion, resting upon logical “ All ever. within the of the United territory jurisdiction or included State must any necessarily by governed are but under Territories The authority po- Congress. litical subdivisions of dominion outlying Nat. States.” Bank v. Yankton, supra. Territories are more than dominion nothing outlying
the United States.
The learned court case below Goetze says: éO
Argument for Plaintiffs in Error. “ New is not under the territory Constitution brought ac- by of the soil, otherwise quisition v. could not have Fleming Page been decided as it was. This is done either anby incorporation into inhabitants Union, an extension of by our laws and institutions This throughout cannot be done territory. by conquest, only by legislation Fleming treaty. Page. Here the and makes treaty recognizes title complete defacto The island gained not thus conquest. under the brought Constitution unless the treaty the confirmation of supplements title an into incorporation inhabitants the Union under the Constitution or the extension of our institu- tions. . . .”
That the incorporation inhabitants into the political body constituting United’States has sovereign people to do with the immunities of nothing within persons terri- seems thus tory established. abundantly Y. Question Status of Poeto Rico under
Presidential Government cannot affect this case. it has been that the urged duties Again imposition here made valid of is reason of the complained President’s pre- over held rogatives under territory conquered military sway. But the tax at New York imposed having upon goods of a under New merchant York tariff im- general law, material that Porto Rico have been under a form military of government.
The Executive claimed that existed, war status military continued, and we the courts cannot view the matter Relieve other but must follow the coordinate branch of the light, Government. however, the truth of it does not follow
Assuming, this, there- from that ceded to the United States is not a part thereof. The that the Executive still continues a de fact facto under the law of government does originated belligerent rights not affect the It has never been determined, question. judicially however, when war has ceased and notoriously peace reigns Executive such a de can triumphant government facto *33 v. WELL. BID
De LIMA Plaintiffs in Error. Argument for and restric- without the restraints full war rights still exercise the Constitution. by upon government tions imposed a contrary and the courts have established Government Leiten Harrison and Cross v. in the case of California doctrine that the it held where was presidential v. Webb,supra, dorfer and remained rights belligerent originated government otherwise. choseto legislate until Congress government defacto continues war that while actually submitted respectfully Chief, is there as Commander the executive power Executive, it is so war has ceased, recognized when (cid:127) civil in a capacity the Executive remains government States. of the United the laws executing purpose or that law, body usage prevailing International great bind- our law and nations, is, course, only among part it has been as far as Government, recognized, our ing upon even viewed our tribunals. But acted upon, adopted have our courts recognized from this precise standpoint, that when territory the rule of international law, adopted force. law of the old remains ceded the government course, and the old is in the sanction, acquiring government, laws because sanctioned the new are laws sovereign As the laws of' the former they ceded sovereign, territory. as the of the inhabitants sanctioned force; are without usages and this law, the new obtain the sovereign, they dignity act. And as remains until' chooses to law unchanged if the laws of such new cannot they they prevail sovereign in conflict with the fundamental of the new sovereign’s principles constitution. or nation otherwise
“Every
by treaty
acquiring territory
must hold it
laws of its own
to the constitution and
subject
v.
Argument for Plaintiffs in Error. remained in Ml force and unchanged, so except far as *34 were in their nature and character found to be in conflict with the Constitution and laws of the United States.” Leitendorfer v. 1 Webb, How. 77.
It is therefore clear that such law is when not in only good contravention of the Constitution laws of the United States, which to new might territories. possibly apply
In such law the enforcing Executive merely enforcing law of the United we States, and, submit, respectfully acting in a civil capacity.
In such he has not the capacity which he would have rights as Commander in Chief during hostilities, and, therefore, the immunities of the Constitution of life, protection liberty in favor of property operate the individual in the ceded tois territory; as restraints say, operate upon the3r Government there because it has ceased be to and be military civil. come This was the one theory the court in Cross v. adopted by
Harrison, and was summed as follows: This tersely up gov- ernment will, of course, exercise inconsistent defacto with the of the United States, Constitution powers is the the land.” law supreme
We determination of submit, however, this question is not the decision of this case. necessary a at duties levied merchant were New port District óf a within the Southern New a York, York, place por- tion of the United States under the territory constituting civil of State. government form of to the United territory belonging government be but the is for that rea- civil, may military none the United States and, therefore,
son less part duties must be uniform the Constitution, according through- out. claim that the United States tem-
To because part therefrom under porarily military government goods coming from countries must be taxed as seems to coming foreign goods us the result of confusion great thought. illustration v. the effect Page, Taney’s Fleming
Judge
WELL.
De LIMA
BID
Error.
for Plaintiffs in
until
laws
these laws
to the revenue
remained foreign
that ports
dis-
of custom-houses, collection
machinery
erected the
had
collectors, was clearly
necessary
tricts, inspectors,
his-
incorrect as the
inwas
itself
as a dictum
decision,
stated and have
were
invoked
mistakenly
torical precedents
v. Harrison,
of Cross
in the later case
court
ignored
Duties must be throughout form of what under it is a matter of indifference particular be. United States any portion government mili- be under the York declared Were State of New submit we respectfully tary government time of goods coming such occupation during military District of Colum- New or into the Jersey York New into on to merchants could not taxed bia there belonging *35 York was not a of the United States. New theory part us to This a YI. The the United States. brings meaning of the that in consideration of the Government uniformity plea ” what it elausé the term United States does not mean plainly implies. Townsend that other na- may admitted, Judge says,
tions take under their which territory sovereignty, they annex do not and make of themselves. part the of the United could That States do and could this people the inhabitants declare that annexed' in future territory have no should the Constitution is rights recognized by clearly demonstrated.
That the officialsof the United States can do this we present deny.
The to other countries is The Consti- misleading. analogy tution of the United States is a one. In the European peculiar the states is also state or nation. same government which also makes constitution. Many legislates nations have a that in- constitution,, so-called but European strument is a not constitution a charts'eon- strictly, merely stitutionelle or an which the charter, instrument by government to the certain gives rights. people government possessing all nation and itself rights sovereign sovereign being TERM, 1900. éá Argument for in Plaintiffs Error.
can, when this covered charte, acting govern as it wishes.
This is the absolute reverse the United States. In United States endow the And Government. people peo- addition other inhibitions which ple have their Government, have declared placed upon duties must uniform the United States. throughout to the
References, of other therefore, constitutional history nations can have no whatever. bearing
The one and the sole is, decision whether question, question, Porto within the Rico, clause, meaning part United States.
While in one sense this is a fact, it also a fact political affecting property right protected by Constitution, and such fact the court feel bound to will, decide it. course, The advocates of the taken the collector'must position claim without order to broadly reservation, maintain their that the clause of the Constitution contention, requiring of duties the United States refers uniformity throughout only and the States to be thirteen States formed original term because the United States as there future, used (in means within clause) only territory comprised uniformity Union.” Brief of several States Attorney-General in Goetze case, p.
The claim is that term United States substance as used in the Constitution can have two The col- meanings: (1) lective name united under were together the Constitution and mentioned in the Declaration Independ- *36 ence in the is the Articles Confederation; original and literal of the word. name meaning (2) corporate the nation. . That as in used States Constitution the term United ”
“ United States refers to the States united does not frequently admit It that it is used with admitted is, however, question. in sense exercis- another great frequency political entity ing governmental power. In the draft with a Constitution, of the Pinckney evidently “ clear one of the of the term United
view make meanings WELL. BID
De LIMA (cid:127) in Error. for Plaintiffs Constitution, following: in appears as used States” “ considered as one body- be forever shall States The United to all privileges and entitled rights in law, corporate to, do, ought appertain.” to bodies corporate It is also evident. a third has, however, meaning, it That and the united corporate body not means only it but means— them, which represents governmental day— language this is ordinary meaning which the over surface flag earth’s whole of-the portion dominion. in States flies sovereign of the United to the mean- not restricted that we clear, therefore, It is of Confederation. in the Articles the term as it appears ing that because than with more plausibility, argued emphasis n it can mean united, in that instrument the States it meant in the Constitution of more nothing tax States” clause of the Con- “United phrase to The United States as- stitution equivalent sembled.” submit that this is a
We history. misinterpretation confederate the thirteen States were thir- period During united a com- distinct teen political sovereignties together by an the nature of a which was strictly agreement treaty. pact were not a nation. They
The creation a funda- Constitution, however, wrought of new mental wine into old Some bottles. change; pouring of the form but the remained, was spirit gone.
A law and had homogeneous-in people practically language itself into a chosen an; organize political governmental unity had existed idea which when the consciousness had become an the Constitution organization people objective reality. did
A nation into as the have be- it, spring being poets cause nation existed. But the nation established for itself a. the Constitution government gave necessary radical that it This was so is absurd organization. change that the term United States” as used the Constitution say used in same sense it had been Con- used the old federation.
Argument for Plaintiffs in Error. The United sometimes States, indeed, mean the States might of the United But it States. meant more besides. something
Since the a vast England September 8, 1788, tract land had into come the unorganized possession the thirteen people States, the British inhabiting col- formerly onies of North America. Whether this tract land belonged to the individual States or to the was a mooted people long and the question, therefrom was the main arising cause dispute to the formation of a more union and the leading perfect adop- tion of the But, Constitution. from the time that this vast tract of came within territory dominion and sovereign ju- risdiction of the United that term States, ceased to mean only the States united.
As was said Madison Federalist “We (No. 38): conclude that the Northwest may will soon become Territory a national tract, and assumed having govern- ment of has to do more. have this’Territory, attempted They officersand have appointed conditions which prescribed upon States be admitted into the Union. All this has been done, and done without the least color of constitutional authority.”
It clear that the Government of the Confederation had never had constitutional this right govern Territory. even States, under that people imperfect took themselves the task which resulted organization, the celebrated ordinance of. inhabitants were accorded not civil ordinary Territory rights, which in that were considered so as to primitive age important but also certain inalienable, political rights.
Of course until cession of these lands General Gov- ernment of the United the latter term States, people could have' one have been would meaning. perfectly and even for the to have used another possible, proper, people the entire domain word made designate up original land, new and which John Marshall called States American Empire.
But the of the Constitution chose use the draughtsman same word three designate things: corporate name and the whole over nation, which the AY v. BID WELL. LIMA
De in Error. for Plaintiffs either their general of the United through people *38 had state jurisdiction. governments of the view under criticism an able advocate admitted It is by “ At has been all concerned, far as the United
that, as been and hence United has new term adopted events such had we have either term which States is the designate .and ac- States and Territories, the- or collectively individually for the former of these it been used while has always cordingly, for the latter.” Professor used it has sometimes been purposes, 1900. Feb. Review, Law Harvard Langdell, the has the word General as the learned Or, Attorney says, the ex- an international sense' third designating meaning and the as a nation,” explains tent of our dominion sovereign is one of com- that term in this sense the admission by stating has no con- is to conventional, mon say, usage that.it —that the Constitution therefore, and that, stitutional or meaning, legal to have intended for purpose. cannot supposed that the did far from its So framers mean being probable so-called international the sense, to use the word its. history demonstrates time exact conclusively quite their intention. was opposite ordinance for the of the Northwest government great Jefferson, drawn modi-
Territory, somewhat originally by fied before it inwas some passed Congress, through respects Constitution itself. It embodied ideas prototype led to the foundation of the which based Constitution, upon up adhered to most of the framers of political philosophy It Constitution. and self-reliant gave hardy pioneers in that and secured Territory political rights self-government them freedom in accordance with guarantees personal the most rules of the common law. That this ordi- enlightened nance was as sacred and as law regarded unchangeable of the Medes and from its which Persians, appears language, declares it to be a between the Territories compact péople of the consent. people unchangeable except by Almost the first act of the first many Congress, framers of the Constitution reenact the Northwest sat, ordinance in idle to that their entirety. doing say TERM, 1900. Plaintiffs in Error.
involved tbe notion that the therein were not people sufficiently protected Constitution, the learned Attorney-General assumes. Constitution them no local self- gave right It was government. to enact some necessary law-conferring them therefore the ordinance political was re- rights, enacted ordinance Congress, original having adopted prior Constitution. adoption contained, The fact that the ordinance many provisions in no subsequent Constitution manner supports of the learned theory General that Attorney accepted doctrine was that such must conferred guarantees rights 102 of Goetze Congress.” brief. p.
Unnecessary provisions sometimes inserted in statutes out of abundant caution.- McAllister v. U. S. 174, U. S., *39 VII. The UNIFORMITY CLAUSE A IS NOT IN THE NATURE OF LAW BUT PROHIBITS THE CONGRESS FROM PASSING CERTAIN
ITSELF, LAWS.
In the of this further reach considering clause uniformity the to be to the term “United consequent'breadth assigned, it to recall the difference between the States,” rule of proper to a and statute, to be that to be given interpretation given act to restrict an whose the object organic statute-making the enactment of a certain of class obnox- and power, prohibit ious legislation. the As framed before Constitution it the ordinance was seems “ to claim the ordinance the history gov-
strange also that the Territory ernment Northwest states- proves doctrine that the men of that did the guarantees not accept day were the of the States inhabitants the possessed by enjoyed of neither virtue of inhabitants the Northwest Territory nor fact that had the Articles of Confederation the there- of one the tofore been States.” within jurisdiction brief,, Gen. Goetze Atty. p. States the Constitution have relating provisions
often in the statutes machinery necessary put creating them out. these en- Without this carry machinery many actments lifeless. v. LIMA BID WELL.
De Argument for Plaintiffs in Error. act
This is true of drawn Mr. Ells- original judiciary statutes. worth and of many early taxation, in the Constitution direct against prohibitions in duties, unless uniformity proportion representation, all of nature. however, bill of are, negative rights, to do certain and it does forbid Government They things In other out the not to carry prohibition. require legislation contravention words, Government cannot legislate them.
The Constitution the inhabitants that all intended dominion the Uni- States Territories under sovereign laws and ted should have the protection equal Constitution. As was said Boyd Judge Brádley
U. S. 616, Amer Fourth Amendment: As regarding every ican statesman our and formative during revolutionary period as a nation was familiar with this freedom monument English to Lord (referring Camden’s decision Entic v. Carrington and three other which was the Wilkes king’s messengers, case) considered as the true and of consti expression ultimate tutional law, it bemay asserted that its confidently propositions in the were minds of those who framed Fourth Amendment Constitution,” etc. In was therefore true, historically That legally, the District of Columbia or the territory west the Missouri is less not within the United States than Maryland and it Pennsylvania; on less necessary of our principles Constitution that uniformity imposition imposts, duties, excises should observed the one *40 than the other. then Since the to collect taxes, and power lay which includes direct taxation, is coextensive with obviously the to power lay collect duties, excises, imposts, since the latter States, extends it fol throughout lows that the to direct taxes also extends power impose through the out United States.” v. Blake. Loughborough that Admitting the Constitution uses “United the term ” States in several it would then we must senses, follow that seek for the of term in the the context. meaning
It is not reasonable to different however, that senses suppose,
VOL. clxxxii —4
Argument for Plaintiffs Error. “ word in to the same would be the clause. That Con- given and collect taxes shall have lay ... gress power pro- of vide the common and welfare United general States,” must be but all duties uniform etc., throughout “United States.”
The United States for whose debts and welfare the general of the taxes to be devoted must mean same proceeds United States are to uniform. throughout they submitted respectfully that it can hardly seriously that contended cannot Congress proceeds apply gen- eral taxation to the defence welfare of the Terri- general tories as parts United States.
If our opponents are must logical deny Congress would, therefore, have the apply power proceeds taxation to the welfare of the general Oklahoma people New Mexico, defend them in case of invasion.
The Constitution also that have shall provides uniform rule naturalization. It has been pass recognized Court laws Con- Supreme early passed by in which sat the members of the convention are many gress value. interpretations highest contemporaneous An of the naturalization law will show that examination include well statute intended to the Territories as the States. act of U. S. which was an c. 29,1795, 20, 1 January
act to includes the Ter naturalization, a uniform rule of provide “ ritories term within the United States.” United States .the It declares a citizen of. the become United alien may any States with certain requisites. complying
He shall courts that has resided declare before one of the he in one of the within States aforesáid or within Territory which such court His time resi- is held at least year. one dence within five included within Territory evidently within which years he shall within the United reside ” and it is evident that the the term statute uses in the same sense it as that Chief Marshall Justice used Great American That' it also used it in the sense Empire. States united is evident the first alien That article, *41 51 LIMA v. BID WELL.
De in for Plaintiffs Error. free white be admitted become a citizen person may being or of them.” in nat- Certainly word in was used both senses. uralization law 112 takes the 102, Elk v. U. S. same view. Wilkins, virtually because It unsound to in some contexts the is argue individual States it not in word is used others may meaning mean to the dominions over which the Govern- apply all ment exercises jurisdiction. word “State” with which the may used, flexibility in en-
and the that when used some underlying principle legal or document the context must be considered and actment word in conventional and mean- understood may ordinary as well as in the historical well illus- meaning, ing legal S. trated in the case of 133 U. v. Riggs, Geofroy It is there held the word “States” “Union” may include District Columbia, strictly speaking although District Columbia is not a It is a State. entity political pos- to local fall sessing right self-government may'properly within State understood designation generally and international law. To language insure re- diplomacy it would be ciprocity meaning necessary hold the term United States or Union is meant all the States in the political ... country. those only communities called the political but also States, those which constitute the bodies called political the Territories and the District Columbia.” Geofroy Riggs, supra. question this term arises meaning very clearly
under the Fourteenth Amendment in the All phrase, persons born or naturalized in the United States.” This has phrase interpreted Court famous case of Supreme Kim Ark v. Wong 169 U. S. as follows: “ These provisions useful their to all application persons within the territorial It is enacted jurisdiction. accordingly section 1997 the statutes that all within persons juris- diction the United States shall have the same rights every State or Territory.” As was said in the House Slaughter Cases, Wall. 36, 74:
“ Not a man be a citizen of United States without TERM, 1900.
Argument for Plaintiffs Error. element is bufan *42 State, of a important necessary a citizen being He must reside latter. within into the the former convert it is citizen of but it, him a only necessary to make the State the United States born or naturalized that he should a citizen of the Union.” ” “ here from the Which is United States distinguished ” “ States ? several — has been demonstrated the term was meant the framers
That “United States” by to include and Territories or the the Constitution States outly- dominion under the the United States; ing jurisdiction it that used in That the Constitution itself shows was in the taxation clause ; sense uniformity of the United States out That laws early carrying it it and that so interpreted meaning given Constitution as the Great Ameri- Chief Justice Marshall by equivalent intended, Fourteenth can meaning Empire Amendment. in which it is meaning
This is ordinary general meaning citizens, American by people not only through- understood, and constitutional uses of historical, legal, out the world. in accord. thereforte term are means the States of the it sometimes The fact that the Government as each immaterial, times other and at States must be de- in the Constitution it meaning time that' occurs the context. termined by Mr. at Webster, times statesman, eminent
It is true an and in Court contended, both before Congress, Supreme of the United did to the Government the Constitution apply that it had Territories, it was when acting no limitation. there in the Ter- full he has .powers legislative Congress,” says, Florida What ? from the State. without ritories any grants of the United States.” It is no part ad- Mr. Webster Calhoun, however, debate In great were Territories mitted that the laws Congress governing to make all the Constitution based granted of the United for the Territories rules and regulations necessary v. BID LIMA WELL. De for Plaintiffs in Error. at Constitution, thereby admitting portion He Territories. was also forced to admit least, applied inhibitions on that the constitutional the General Government were force. 20 Feb. 1849. Globe, 252, everywhere Cong. An examination of the taken Webster shows Mr. position that he had in mind and that when he asked political rights, Florida and said it was no be- about the United States part he cause not had in mind the represented Congress, political of the States the Constitution, rights people recognized by which extend well the inhabitants Territories. which he was forced to take resolves however, position, into itself that under the rules and simply assumption clause can do what wishes the Ter- regulations ritories. This has been so overruled position frequently *43 courts that it is now to it. scarcely necessary argue
It is to the certainly clause, because inapplicable uniformity' even if the Bill of strained construction Rights by any not to Constitution held into the Territories, go Congress as clause, has been certainly uniformity shown, applies .to the whole United therefore limits when Congress for the Territories. legislating
The learned counsel for the Government has set forth the de- bate in the Senate on the Walker amendment proposing extension Constitution to California. He considers Cal- the father of houn that the theory Constitution have can effect Territories, believes the doctrine to have had its in the desire of the advocates of origin to that in- slavery carry into the stitution Territories.
If Webster a adopted position even his and in- ability failed to sustain, this genuity attributable to position fairly his fear doctrine that the Constitution extended to the States would involve the as we believe a proposition (not neces- should sary also to consequence) slavery be allowed exist in the Territories free from the to interfere power Congress with it. therefore,
He was, at- the from a looking question partisan and his on the as a standpoint, opinion question legal proposi- was as much influenced tion that of Calhoun. thereby
. Argument for Plaintiffs in Error. referred to has been well described The debate Yon Holst, whose its a historian hostility slavery a most advocates.is of his able and marked characteristic exhaustive work. “ The amendment in He this modified form says: rise gave to an interesting important constitutionaLdebate. Webster it to on ground unlimited objected gave President but district, over he also maintained that it was authority extend the Constitution in so a to a impossible general way was indeed the moral Territory. its duty Congress for' the Territory legislation preserve principles the. but it was not Constitution, The Terri- absolutely necessary. were not tories of the United States. part, possession on the Calhoun, maintained that the contrary, Constitution, was of itself which- law of the extended land, supreme jyi'o- and eo Territories, also to the even vigore ipso prio though ' Constitution, were not all there. If the provisions applicable does not extend whence did Territories, Congress get which existed virtue of the authority, only by Constitution, exercise over the Territories? any government
“Calhoun had Webster evidently right, although .good for astonishment that the radical grounds State upholder should view. The courts of the United rights support'this decided that the have Constitution has existence. The legal relation the Union the Territories is, therefore, a re- legal lation and under the Constitution which is wholly independ- ent of the which it is in fact legislation Congress, basis. fact, that action of legislative required order to make this relation effective is legal by means, *44 seemed to in think, contradiction of this Webster relation, for, as Calhoun said, action of rightly legislative is Congress in order to into necessary put equally operation provision the Constitution to the States. relating there Unquestionably is an essential difference between the nature of the rela- legal tions the States to the Union the Territory. line of distinction-following Webster’s is fol- thought closely ‘ lowed by Cooley’s Constitution made for saying, States, . Territories.’ . . [********]
De LIMA BIDv. WELL. for Plaintiffs in Error. “ And incontestable is its fur- equally (the Court’s) Supreme ther that the declaration of the Federal Government powers in Territories cannot be regard persons property than those to the citizens of the State. greater guaranteed Calhoun had asked whether could create a Congress nobility and an established church in the Territories.” Von Holst’s Constitutional vol. 4AA. History, p. from the clause has
Exemption uniformity sought fact that as the local Congress, acting legislature, may impose taxes for the use of a as the special locality, special have, do in the over which territory they legislative power. When as the local in the Terri- Congress acting legislature tories, it is that it there, contended is not bound taxing clause. uniformity taxes are not Such for the common welfare of the United but are to States, defray expense government the dual which locality, position occupies Congress our as Federal Government and as local system, government for the of the United States not erected into it has to tax for local power purposes.
Taxes, levied Porto therefore, Eico, the of which proceeds are for the benefit or maintenance of the applied government of the island, be defended may, perhaps, ground in the exercise of the imposed right has in the Territories.
But no of this kind can question arise in case. The tax was under the a law for imposed Act, the taxation of Dingley all into the United goods coming States of America and for the benefit of the of the United States. Treasury Congress pass- this law was as the General and no ing Government, acting ques- tion of its as the local can raised. legislature possibly The tax was levied on of a New York merchant at goods of New York and is unaffected status of Porto port Eico, once admitted that Porto Eico being part United States. History
VIII. Precedents Drawn from Our do not Sus- tain the Position of the Government. to be drawn attempted learned coun- precedents
Argument for Plaintiffs in Error. sel for the Government from the history Louisiana and Mexican annexations under the treaties with France and Mex- ico, are not in respectively, point.
The learned General Attorney states 31 of his Goetze (page brief): “ It is a common error, disseminated and long times many to assert that Jefferson was repeated, under the belief that United States had no constitutional power acquire foreign . . . territory. “ An however, examination, of his and of his whole writings course of action with reference to the Louisiana es- purchase, with reference to pecially the constitutional shoAvs question,_ that Mr. Jefferson’s doubt conclusively was not with reference of the United States to power acquire foreign' territory, but rather as to the to annex it to and it a right make part the United States.” n The learned counsel thinks this point very great import- ance.
,aAs matter of his view is history correct, perhaps although even as to this there is considerable doubt.
"What did Jefferson doubt, certainly history time and the debates in tend to show was the Congress it, to admit new States to the Union ceded without even a Constitutional Amendment or territory the consent of all the States.
Mr. Jefferson had instructed Mr. then American Livingston, minister in in no event Paris, that should a be inserted provision with the French Government providing should be erected the new as he territory, evidently States did not believe that this could be and was there- done, legally fore the Government should unwilling take an itself upcili which it could not obligation carry out.
Mr. Jefferson knew the which the felt of each jealousy 'other ánd the sectional which He felt that feeling prevailed. an to form States out of this vast would attempt give and Avith rise to view he so instructed Mr. controversy, . Mr. for Livingston. however, reasons doubt- Livingston, the wisdom of his less justified act, the instructions disobeyed of Mr. Jefferson.
De BID WELL. LIMA v. Plaintiffs Error. *46 First desired to insert a in the Louis- The provision Consul the effect that the iana to inhabitants treaty incorporated to States,” into the Union etc. was necessary with as France was conclude the great treaty rapidity, verging war the England, by opportunity presented the of the First Consul to cede the whole Louisiana proposition that he seemed so favorable Mr. Livingston thought territory no obstacles immediate should execution. interposed' It was for this reason that clause was inserted in treaty, This to the instructions the Pr.esideht. contrary express from its can mean one clause, appears wording, thing. The new was to be the States of the admitted territory among and its inhabitants to be soon Union, citizens of such States as as possible. as outlined in the time, history foregoing, proves
this Adams’ of United vol. States, II, beyond question. History II to Y. chap.
As said Mr. Jefferson by Attorney quoted General: It is most convene because necessary Congress] [to will be to ask from the they an amendment obliged people the Constitution their into authorizing receiving province the Union.” “ The Constitution has made no for our provision, holding for still less foreign territory, nations into incorporating foreign Union.” our “ I think it would be safer not to permit enlargement the Union but amendment Constitution.”
“ I am aware of the force of the observations on you make the power the Constitution to given by to admit Congress new into States the Union without restraining subject then territory United States. constituting But when I con- that sider the limits of the United fixed precisely that Treaty 1783, Constitution declares it- expressly to be self made for the United I cannot help believing that the intention was to to admit permit Congress into Union new States which should be out formed of the territory for which under whose alone were then authority they I not it do believe was meant that acting. receive might Error;
Argument for Plaintiffs in into Ireland, Holland, etc., which would it, be the England, case under to construction.” General’s pp. Attorney your brief. General, however, seems to Attorney assume learnéd shall be ad- expression
mitted into the etc., means Union, different something He the union the States. This dem- says: correspondence onstrates whatever doubt Jefferson had as to conclusively the constitutional the Louisiana authority related, Treaty either of the territory, acquiring right treaty- or of to annex it to or making power incorporate into the Union.”
If means General it into Attorney incorporate as a State, the Union we with his assertion. We cannot agree *47 what other it can have, see and the meaning possibly yet General finds in this of the Louisiana Attorney history acquisi- tion for the that be ac- precedent proposition territory and held our Government as a colony quired by province, not a of the United States. part the which learned seems to General Attorney meaning the Union included in mind is that the actual
have only the which had but that of been ceded States, portion States and which was known the Government the General usually to think, He seems that as the further, Northwest Territory. that that should be erected into had intended territory framers different basis from thereafter stood States, territory into the Union did not that neces- and incorporation acquired, the new but meant mean as a State, place territory sarily held Ter- the Northwest same as that formerly the position ritory. the force
We fail this'argument. utterly appreciate his and advisers, it to be true that Jefferson Even assuming that Constitution, as the framers contemplated as well held in trust for the this was erecting territory purpose there was Consti- out of nevertheless it, nothing States should held tution show territory differently thereafter differently territory acquired. governed did it is that Jefferson assume claimed, Admitting, v. BIDWELL.. De LIMA in Error. for Plaintiffs the ter- had Government acquiring the' United learned to the contention the’ then, it would according ritory, under the rules and come Government, regula- for the counsel clause. tions he the Constitution however,
This the clause, of the Northwest Territory. finds warrant the government the new acquisitions the Northwest Therefore, Territory As is said by similar footing. have stood on a must precisely “ The his 102 of the learned General brief): Attorney (page of the Northwest ordinance for the history government did not also of that that the period statesmen Territory proves the inhabi- the doctrine that accept guarantees enjoyed tants of the States were the inhabitants possessed by of Con- the Article Northwest neither virtue of Territory, nor federation fact that theretofore had within they of one of the States.” jurisdiction ” union union of therefore meant the phrase Mr. when Jefferson his advisors doubted propriety into the did not admitting Union, mean the territory union of States and union of Territories, States. it is Besides, submitted that respectfully undoubted of the word union.” meaning The debates cited at so much show that length clearly toas question constitutionality propriety into stipulation treaty admitting territory new. Union. shared Mr.
Many Jefferson’s doubts, at least as far as the the new question admitting statehood *48 was concerned.
It did not seem to be understood at that time whether clearly the was of itself so treaty to admit the operative inhabitants, an act of whether Congress was or whether both to- necessary, without an of the Constitution or gether -amendment the con- all the sent States could accomplish object. Art.
That Ill of the of 1803 was considered Con- Treaty by Louisiana inhabitants as gress to intending provide for an their admission of as a State is evidenced remonstrance and the ex- Congressional reply, we lor Plaintiffs in Error. honorable to have “Your seems construc- cerpt: body adopted tion of this article which would until performance suspend some fixed of the Constitution to period principles ‘ have read the article The inhabitants thus: shall be incor- into the Union and admitted to the of all porated enjoyment as etc., as of the Federal rights, Consti- principles soon tution will on We, contend permit.’ that contrary, ‘ words to the of the Federal according Constitution,’ principles in the sentence form no they that placed limitation, they were intended as a of the kind of we were to description rights at or, relate to the most, mode which to be enjoy, wece and that conferred, the article no other contemplates delay our than will be laws reception pass required necessary and ascertain the to which we are entitled.” To representation this remonstrance the Committee of “We Congress replied: in the first consider, clause, that the which is the place, ground our claim, made favor of the in- stipulation expressly habitants of Louisiana then because the French Govern- existing, had no ment of the future right stipulate incorporation ‘ citizens of Louisiana. We think the words soon as pos- sible, Constitution,’ according principles evidently that this is to be executed without incorporation express any and that is to take on the same unnecessary delay, place prin- has which the Constitution regulated ciples by rights individual and of the citizens States, to the Federal We think relation compact. humbly any interpretation tending procrastinate incorporation inhabitants of Louisiana into the Union is present directly op- to the' of the third article cession of our spirit posite country, which is to secure that object unquestionably advantage to the inhabitants who are annexed to the United States that, condition on future treaty; consequently, depending circumstances to be because it would inadmissible, ought expose inhabitants who existed Louisiana when the was made out of the which have been kept enjoyment rights for them.” stipulated difference of as to the time when such opinion should be conferred.
statehood *49 v. BID WELL.
De LIMA Plaintiffs in Error. in mind were borne evidently difficulties doubts These Mexico, it concluded when Government by from the clause of avoided, were appears and they treaty. Treaty.
Mexico at be admitted into the Union and Should be incorporated of the treaty), immediately vigore time proprio (not proper to the the United States enjoy act of the At the United of citizens of p. all ment rights case. brief General’s Goetze torney Treaty.
Louisiana shall of the ceded The inhabitants territory incorporated States and admitted as soon as the United the Union of into of the Federal Constitution according principles possible and immunities of of all advantages, enjoyment rights, States. citizens that Jefferson believed the Govern-
"We submit respectfully doubted he whether such could annex ment territory, though into the this could be admitted Union, question territory case is affected. is, Government territory contention save the States subse- territories,
all original inhibitions are not affected admitted, placed by quently the Constitution on the action Government. all
This claim to be true of owned they time States from the earliest is, present; their to the Northwest argument applies Territory equally the island of Porto Rico.
There here failure between political distinguish rights on the hand and one the immunities actions of the against Government which United States cre- have people the other ated the Constitution on hand.
The statesmen of Jefferson’s un- day were, many them, should be admitted into the that Louisiana have Union, willing two Senators and and disturb Representatives Congress, what nice believed to be a of interests. they very adjustment
Argument for Plaintiffs in Error. doubtless feared was What political had power. They *50 establish desire to an Louisiana, order of oppress or a nobility to take without due property religion, process to tax' law, inhabitants their own the for benefit. That none of these was were their minds evident from the things course pursued. was all She the and the given guarantees liberty machinery to out. Our them customs laws and tariff carry were extended to and her her inhabitants were not cut off from our markets. No no doubts can debates,, be found in struggles, the history to of the time as the her to have all right these people things. It therefore, manifest the statesmen is, who the opposed it, because feared to those treaty opposed they grant things which were so so given because freely unanimously, feared the admission of they Louisiana subsequent and the of new forces and interests into injection political Union The act of States. March 26, for 1804, enacted a full of Louisiana bill of in en- government rights tire accord with the Constitution. true that in October, House enacted hurriedly
a bill for immediate providing government, temporary to him all the held President, the former transferring powers officials.- this was a That measure Spanish temporary appears its face and the bill above referred to for the government was within even this passed year, haste yet was inserted that these should be exercised powers safeguard for the inhabitants of Louisiana in maintaining protecting the full their liberty, property, enjoyment religion. bill
While this latter was under Dr. consideration, Eustace, made relied Massachusetts, speech largely upon by of his that the learned General in Con- point Attorney support Dr. Eustace stitution had no effect in Louisiana. said: The for and are at un- my opinion, present unprepared people, The first desirous of franchise. elective object exercising is to hold the How ? country. By protect- Government in all their and by administering ing people rights gov- ernment such a manner as prevent any disagreement among them —to use no other term. . When should . . they our Government, better acquainted principles LTMA v. BID W ELL. De Plaintiffs in Error. in our desirous participating privileges, become shall have franchise. Have elective them extend be full time will since from an authentic source informed not the House institutions are of our inappli- provisions cession ” ? cable them bill which made support And yet speech full civil rights. guaranteed held Congress, probably rightly
The view was then we term terri- under what remain should that the held, people be admitted before should torial for some time government as States. seems General Attorney
In this connection learned in- as to what he statement Gouverneur Morris’s believe that of the Constitution *51 clause tended the rules and regulations by believe that a While have some we scarcely should weight. to what one letter as in a communication contained private can the law mean, member of a convention desired that should we tribunal, as a factor re- be considered nevertheless by if the letter is to be at submit that given any weight spectfully took view it to that the convention a all show goes opposite from that advocated the Government. “ I Morris that when we Gouverneur says: always thought Canada and it would to Louisiana, should acquire proper and in as allow them no voice our coun- them provinces govern the third In section the fourth I went cils. wording article, would to far as circumstances establish exclusion. as permit me to add that more belief, had been my Candor obliges a would been have made.” expressed, strong opposition pointedly idea seems to ter- Mr. Morris’s have been that newly acquired under not, should be admitted to state- Constitution, ritory he meant that it hood. should be denied the com- If ordinary mon-law he did not Constitution, rights guaranteed say However, do, even as the Government seems to so. assuming, his intention, this was he shrank from announc- that apparently a convention, it to of that He, the convention. member ing in its debates, a doubtless understood participant prominent so he that no scheme of all those sure was views present, he of colonial mind; had such as government, apparently n Argument for Plaintiffs Error.
could be that he Constitution, endeavored engrafted upon means of a to into the Constitution subterfuge some- inject twisted into which the might thing granting power other members of the convention did not wish to confer upon the Government.
The rules and clause, viewed regulations his- light referred to to land tory, Terri- granting-titles Northwest and otherwise of and tory it. It was a disposing regulating substitute for the draft Pinckney to appropriate unappro- lands of the United priated States.” Gouverneur Morris’s redraft of this without clause passed and it was evident framers opposition, Constitu- tion saw other in it than that meaning draft. Pinckney That so able man as Morris should have been to compelled to confer the Government the Constitution attempt such a in such a is clear evidence of the inten- way very tions of the framed the who Constitution. As he him- majority self had intention been admits, his expressed, strong, opposi- tion would have made. That this been would opposition have override his views would seem not im- strong enough from his fear failure them. openly express probable cases territorial courts so have been relating fully briefs learned court, already presented discussed ’ further We comment required. say as to whether do not affect the question territory newly within the limits yet acquired by treaty, unorganized, clause subject uniformity Constitution. .. *52 n The courts of the States United were regular judicial clearly (cid:127) established for the Constitution purpose exercising in and within reference certain matters jurisdiction specified of the Consti- States the -United States: The language tution makes this in were clear itself. adapted They carry out the Federal system government. has are, court of the Federal said, They system, parts with the of the United States, judicial power expressly invested conferred Constitution and to exercised in correlation and- several courts presence state jurisdiction v. WELL. 65
De LIMA BID in for Plaintiffs Error. 18 v. Toombs, Hornbuckle Wall. 655. 648, and governments.” S., in McAllister v. U. U. 183. S. Cited with approval the courts established hand, On the other Congress have not over matters jurisdiction the Territories within reserves to the Government specially Constitution which but over all cases Government, general jurisdiction Federal in which man, and States are man between arising courts. of the state within jurisdiction but courts, not Federal municipal In other are words, they courts. is that the territorial decide these cases most, then, the Constitution. are mentioned
courts not the courts do and must rest, decisions ultimate these ground upon and therefore the States, fact Territories are not is the them. The dis- courts would constitutional inapplicable under the Federal and state between the jurisdictions, tinctions foundation these no has States, United Constitution such distinction territorial governments, consequently to the of their courts exists either or the jurisdiction respect are submitted their cognizance. They subjects legislative courts and their courts, the' legislative governments, of its exercise of' organization government powers of both the the Territories state and Fed- powers combining There is eral authorities. one or of system government their within as neither limits, laws subject operating constitutional to state Federal respect juris- provisions diction.” Benner Porter, How.
This from the at bar. entirely different question question The inhibitions central Government placed upon general and are in their to the Government and language applicable That circumstances. any particular territory particular it is Chief Justice Marshall so understood clear from very Canter case. him in the He admitted used by expressions were at least the citizens of Florida citizens of If that it is that Mr. the United States. was- clear so, very contention that Florida was not Webster’s part held to be was considered unsound. But Florida having the court then to show proceeds part VOL. olxxxii —5
66
Argument for Plaintiffs in Error. local courts be courts territorial under the act of Congress, courts of United States. and not is little than ab- less Chief Justice Marshall, surd to cit- say though considering citizens of Florida izens United considered States, Florida foreign country. concern has
Some been the effect expressed reference to uncivilized nationalization tribes that in- the invaluable habit possessions under the acquired Treaty dread of the Paris —a wielded hordes of untamed sufferage by Malays. General has,
The we Attorney believe, this fear dissipated he assumes at Government 60 position page for brief: Goetze status the native Indian political tribes within the United States territory acquired by has been uniformly unaffected A regarded cession. long line of treaties with such tribes and numerous special acts on the of Indians by Congress and Indian legislation subject these have show been rights people always regarded foreign.” quasi is sustained at once abundant
This precedent position Worcester v. 5 illustrious, 1, 17 Pet. down Georgia, (1826), date, recent the most v. United 118 Kagama States, through 376; 375; v. S. U. S. Talton U. v. etc. Mayes, Wilkins, Elk Indians have from the considered beginning held as distinct communities, alle- political owing primary to their tribal and not authorities, to the giance subject complete of the United States. jurisdiction For reason théir birth within the United States does not confer them the which the Constitution at- citizenship such birth in taches to one subject jurisdiction. While the Indians, have however, under the law occupied the anomalous na- subservient position independent though has never ceased to be ter- tionality, occupy of the United within the States, boundaries ritory geographical of and subject dominion of the nation; sovereignty sense a every to the extent part birth within to endow the so such-territory enough person BIDWELL.
De LIMA Plaintiffs Error. *54 to he owed immediate allegiance born with citizenship —unless some tribe. is: Whether uncivilized tribes that remains
The only question be assimilated or Caribbean in our new possessions Asiatic if should Government tribes, to the these Indian them. choose so to treat the state of tribal relations
That
the
savage
existence
un-
case
without
like effect
either
goes
saying,
have a
should
unless,
other
inhibition;
constitutional
there is some
less
which has
since
tribes,
of Indian
prevailed
the
words,
relation
have
to
been lim-
was
can be shown
the Constitution
adopted,
American Indians.
to North
such Constitution
ited by
limitation
confidence that
such
can
submit with
We
found.
This court in saj^s: almost of the States is silent in Constitution United to the Government estab- the relations was regard within numerous tribes Indians its bor- the lished ders.” 278. p. out that the
The court then clauses proceeds point commerce relevant are Indian regulate direct taxation tribes, In- apportionment excluding not dians taxed.
It was and the of ex- ownership territory, right over the which was same, clusive sovereignty lodged Federal Government Government gave right the actions of Indians, such controlling excluding even state within whose borders an privilege government Indian reservation located.
In Elk Wilkins, born within relation Indian United States to tribal was deter- subject government mined under Indian clause any specific Constitution, clause relating birth, under the citizenship by XIVth amendment. other
In there words, no Indian clauses in the virtually Constitution, to confine the of our certainly nothing regulation intercourse with tribes within borders uncivilized our to North American Indians. TERM, 1900.
Argument for Plaintiffs Error. of Mexican additional uncivilized In the territory, acquisition in and dealt with. tribes were brought in that the uncivilized Alaska, On the tribes acquisition racial are as distinct from characteristics whose Territory, from the North Indian both are American Malay with on the dealt basis. The were same treaty provides: Tagal, inhabitants . . . with the of uncivilized exception all the native shall admitted tribes enjoyment Art. Ill, and immunities of etc.” rights, advantages, citizenship, March “ The uncivilized tribes will be to such laws and reg- subject ulations States from to time time regard adopt tribes.” aboriginal theOn command- general acquisition Philippines, *55 entered into a with the head the Sulk who tribes, ing treaty of a there the title and certain attributes sultan. enjoys see We can indeed we little see difficulty, relevancy, the the relation of Indian the question sovereignty all within and the ob- borders, States over territory which the Constitution establishes uniform ligation imposts borders. those throughout
IX. The Question the Effects of Cession of Citizen- ship. It is the that: contended Government “The conceded by or includes power by conquest acquire the what the United States will right terms prescribe agree to as status of its inhabitants.” fixing
We have elsewhere shown that the status inhabitants is a matter. from and outside the principles governing apart this case. to do with citizen-
The of customs duties has nothing question or nationality. ship our views
The the learned General expresses brief of Attorney admirably. into the United States is a merchandise to bring right such a within the Congress; regulation right right entirely or aliens. to either citizens no wise differs as Citizenship v. WELL. BID De LIMA in Error". Plaintiffs for (cid:127) at custom- privileges it no peculiar special carries with Rican are treated the Porto American, Spaniard, house. The but not laws is the customs ownership, basis of alike. the nature (2) of the shipment, origin (1) geographical case, in Goetze p. Gen. Brief Atty. goods.” it concession, this and with might circumstances, these Under of citizenship the vexed to discuss question seem superfluous if deemed important, learned General not the had Attorney in his at some length and discussed relevant, question brief. two of his cites precedents.
In he proposition support war, civil The status of free (1) prior negro amendments to Constitution. of our relations with the Indians. The history (2) adduced have should cause he surprise least cred- the two of such an in support important proposition our instances history. itable itself follows
His seems sum up argument Rico are not citizens of The inhabitants Porto the United- to confer is one which the States because (1) citizenship instance has not this chosen exercise; Government such (2) is not either Constitution, citizenship expressly conferred from the fact' laws, shown treaty; appears (as that free Dred were not citizens and Scott case) negroes tribes that tho members of the Indian have held always could to be not who citizens quasi foreigners only acquire naturalization. citizenship
These seem so toas somewhat questions important require full examination. “ The law knows as nations communities and political therefore, as States. The as a attri- sovereign nationality, legal of bute is with a certain connection mem- persons, body politic, in a State. The members a State are bership particular called its or former term if citizéns. The subjects properly is construed nation without re- applicable any people to the form of is based State government, every gard upon the relation of its members to its sovereign.” Encyclopedia . 70 for Plaintiffs in Error.
Political Science and United States article History, Nationality, Munroe Smith.
The citizenship States has question always been confused because of the use of that word in dual a sense. “ ” The word citizen two has meanings. the first sense, means and- primarily properly, per sons exercising political rights members of the ruling body politic.
In the second it sense, is to the whole applicable people nation without to the form of regard Citizen- government. latter in the sense means ship subject simply allegiancé a State or nation. In this it particular sense has precisely “ same as the term meaning on the Constitu- subject.” Story tion, edition and Cooley’s at notes, cited 1932-33-34, length §§ Sen. 5th Foraker, No. Feb. 56th 12, 249, p. Rep. 1900, Cong. 1st Sess. All the members of to its nation, subject jurisdiction, or, “ born
the common law has under actual it, obedience” are ” citizens in this sense. word or has been subjects subject discredited reason of its usual somewhat reference feudal where or few of monarchies none absolute are subjects in the sense citizens learned political rights. possessing is in error the term General does supposing Attorney the nature form of the govern- imply anything ment Goetze 72, of which one is brief. rea- subject.” p. By this term thus son of disfavor has fallen is into, now nation found in no save governed constitutionally England. law The rule the common upon subject plain settled both in and America. in the well case England Except of children of born ambassadors, who theory child whom the soil born sovereign parent represents, is born his without refer allegiance king subject ence to the or condition of its status Birth political parents. 1 Blackstone, 2 Kent’s Com. 366; allegiance go together. 43 v. The 3 120 ; Sailor’s Pet. U. Ingles Snug Harbor, ; S. Rhodes, v. Abb. U. S. 40; author Clarke, Rep. Lynch ities there Sandf. Ch. 630. cited; This than more the rule the com- nothing declaratory *57 n v. BID WELL.
De LIMA in Error. for Plaintiffs a citizen United States To above stated. mon law as within must not be born his birth, person reason its must also be born but he limits, subject territorial and obedience. McKay in its is, jurisdiction —that 129. See Circuit, Ninth 3 p. U. S. Courts Rep. Campbell, S. 99. U. also Wilkins, Elk v. this dual due to avoid
In order, however,
ambiguity
of the word
French make use
and the
sense,
Germans
”
to the
all
allegiance
nationals
subject
denote
persons
both
including
the nationality,
i.
state,
e., forming
part
Generally
and
speak-
holders
nonholders
rights.
political
include every person
nationals and aliens would
therefore,
ing,
and would indicate
relations
legal
within a
given
of such
which
hold to the
territory.
public authority
those
into
classes,
Nationals are
divided
two
possess-
again
them. The
and
who do not
those
possess
political
rights
ing
minors,
who,
latter class would include women,
persons
do not
for a
than
reasons other
possess
variety
alienage,
Before the Fourteenth Amendment the only apparent excep- tion due our incidents of peculiar history made the different from human negro ordinary something do- half man, within being something partly —half beast — main of natural within that of history partly politics. had in the Dred been denied citizenship negro Scott case on the citizenship subjection assumption were not indentical that a abe ideas; subject person might ac- without a citizen. In being citizenship declaring in the same manner in which is established quired subjection at common the Fourteenth Amendment has law, placed of these terms and established citizenship equivalency Pol. of a doubt.” negro beyond possibility Encyclopaedia Sc. Article Nationality.
In recent on the case nationality leading question
Argument for Plaintiffs in Error. *58 Kim 169 citizenship (Wong Ark, U. Justice S.) Gray, writing for the “In Dred Scott court, says: 19 (1857), Sandford 393, How. Mr. Justice Curtis said: “ ‘ The first section of the second article of the Constitution uses the natural-born citizen. language thus assumes —a be acquired citizenship Undoubtedly birth.. of the Constitution was used in reference to language of law well in this principle public understood at the country time of of the adoption referred citi- Constitution, to the of birth. 19 How. zenship place “ more than ‘Allegiance the tie or of nothing obedi- duty ence of subject under whose he sovereign protection and birth is is; that which allegiance by arises from born being within the dominions and under the of a protection particular Two concur to create sovereign. usually things citizenship; first, birth within the dominions of the locally and sovereign; birth within the and secondly, protection or other obedience, within the words, ligeance is, sovereign party —that must born -within a where the is at the time place sovereign and exercise of his full and the must power, possession party also at his birth derive and owe protection consequently . . as such . obedience or allegiance sovereign defacto. “ ‘ are in a and citizen convertible terms Subject degree ap- term citizen seems to natives; though plied appro- we are with freemen, yet inhab- priate equally republican or itants of all countries we subjects, other bound equally to the Government and law of the subjection allegiance land.’ Kent. note. 258, 2 Com. once controverted, Passing by earnestly questions finally at Fourteenth Amendment of the rest'by Constitution, put that, doubt before enactment the civil beyond rights act of or amendment, constitutional adoption all white at least and within born persons sovereignty children of or United whether citizens foreigners, ministers children of ambassadors excepting only public were native-born citizens foreign government, States. of the common law fundamental principle regard v. WELL. LIMA BID 73
De in Error. Argument for Plaintiffs also birth within the nationality allegiance, English 4 4 faith,’ obedience,’ power,’ King. called ligealty,’ born within the alle embraced all persons King’s principle Such to his pro allegiance protection. subject giancp tection irahit maxim, mutual —as pi'otectio were expressed not restricted were et proteoiionem subjectionem, svhjectio —and who naturalized or to those to.natural-born subjects, subjects of aliens but were predicable had taken an oath allegiance; Children were within the so Kingdom. amity, long natural-born were, therefore, born of such aliens England born within realm, foreign But the children subjects. born enemies, or the children ambassadors, during-and alien dominions, their King’s within hostile part occupation not born within because natural-born *59 were not subjects, would be at this said dr, or the obedience, allegiance, power, of within the King.” jurisdiction day, from these it. naturally unquestioned principles, Proceeding other ceded Porto Itico that the natives of follows is-. as the learned nationals, or, Attorney lands are United States to term American them, General subjects. prefers nationals in the same are or sense that women, They subjects of Oklahoma and Arizona are inhabitants' minors, subjects nationals. an educational for
Persons States requiring qualification are cannot attain to this also this who qualification, voting, position. means no more than if the learned counsel And, certainly, American is To be called an he when he
this, that, right says is no disgrace.” subject for it de-
That the this idea is clear, carries out treaty very of who have not elected clares that natives of Spain peninsula the na- shall be deemed to to remain possess Spanish subjects course, in which reside. Of they tionality territory the nation under territories depends upon nationality and as this are, the territories whose jurisdiction jurisdiction citi- phrase equivalent saying do not to remain citizens elect zens of the who Spanish territory 1900. Argument for Plaintiffs Error. nationals, or,
become American again, the learned Attorney General them, American prefers style subjects.
It is clear that Porto and the very Rico Island of Guam have of their nor can own, nationality any which does not be said possess sovereignty autonomy to have nation- The inhabitants these ality. possessions the United States to its obedience and subject are, therefore, nationals or subjects. with negotiators treaty under- Spain undoubtedly
stood the all the treaty inhabitants who did making —as elect to remain American Spaniards, citizens or nationals. commissioners Spanish claimed that— “ The American commission refuses acknowledge right of the inhabitants of the countries ceded or relinquished by to choose the Spain which, citizenship up present, have been clothed. And, nevertheless, choos- right which is one of the most sacred ing, human rights has beings, sacred since the when man constantly day emancipated from serfdom. This has been sacred in treaties right respected territorial concluded cession modern times.” Annex to Protocol No. 21, United States and peace between of Dec. Spain
To this the was made: following reply “The American commissioners do not so understand the ar- ticle submitted as a citizenship them sub- subject stitute the article commissioners. Spanish proposed An the article will show analysis Spanish subjects, *60 are allowed a time in which, natives Spam year’s thesira- of in a of court record their intention so to ple process stating their to do, they may allegiance preserve Spain.
“Such have the fullest to of their persons right dispose and remove from the to or, con- property territory, remaining, tinue be or elect to subjects new Spanish nationality territory. “ toAs their status and civil to natives, left Con- rights which will to enact laws the ceded gress, govern territory. no This is more than the assertion of the right governing relations to control these to the new important govern- BID WELL. LIMA
De (cid:127) Plaintiffs Error. which never has of a enacted country The Congress
ment. within do- residents its rights abridge laws to oppress consistent with liberty laws permit largest and whose main, order and protection property, the preservation well-settled practice to depart trusted safely Annex to these islands.” inhabitants with the dealing between United States and Protocol No. 22, treaty peace Dec. Spain is it reason- makers, of the treaty
In view of these assertions Con- intended this empower able- to claim that treaty “ dependencies” for the first time in its history govern gress ? immunities Constitutional regard without if we understand Government, But the learned counsel for mere him claims that annexation of correctly, citizen- for conferring cession which makes treaty provision until them the inhabitants leaves aliens ship chooses to enact otherwise.
The Mexican, Alaskan Louisiana, Florida, treaties and pro- vided that shall be admitted to the inhabitants enjoyment of citizens of the States, United rights privileges infers such from this he that without would stipulation they not have been citizens. Alaska, As to Louisiana, Florida, stipulation evidently “ full incident to
refers not to statehood; naked citizenship to borrow Justice Curtis’s have or, we citizenship,” phrase, termed nationals.” it, The Alaskan -that it uncivilized peculiar excepts tribes. inhabitants of the ceded to their territories, according their return to choice, natural Bussia reserving allegiance, may within but if three ceded years; they prefer remaining native tribes, uncivilized territory they, exception shall admitted to all the advan- rights, enjoyment United -States.” immunities of-citizens of tages, In that three was considered years treaty remaining equiva- lent the Bussian renouncing allegiance. of election a General considers Attorney privilege finds
suspension citizenship by *61 TERM, 1900. Argument for Plaintiffs in Error. did
this that the Constitution' not affect proof question. It is 58. submitted the inhabitants Brief, respectfully p. had Alaska been Russian citizens it is usual subjects; under the of international law to allow general postulates, per- sons retain to to their if former so allegiance masters, they desire. The in the Alaskan provision treaty gave simply inhabitants three to decide whether would retain years they their former Their was not allegiance. suspended; citizenship were Russian citizens to until become Ameri- they chose they can citizens.
This to treaty with analogous Spain. inhabitants Spanish-born ceded islands are allowed one in which to year decide to whether wish retain their for- they mer In retain it, case should their citizenship. they allegiance was due their reliance her. Spain protection Should not retain then became United States na- they it, they tionals. Art. IX. Paris, Treaty The other inhabitants of the islands not been have accorded out in for reasons set the documents of the fully privilege Peace Senate Doc. Commission.
As far as United concerned, States was the latter people could like natives of the not remain peninsula, Spanish subjects, but became at once United States That the nationals. have them remain might given Spanish subjects did not is doubtless but it choose do so. true, Pothier thus Mr. down lays principle, says Lawrence, had reference been made France acquisitions before the French Revolution: When united province Crown, inhabitants must as Frenchmen regarded whether born were before or after the union.” Pothier carries so far as to There is principle say: every think reason to who are established these foreigners and who have there provinces, obtained, to the laws according force, after rights must, annexation, citizenship, be considered citizens with the native inhabitants equally those at or, least, naturalized provinces, foreigners France.”
And the same in the cases of loss and applying principle WELL. BID
De LIMA for Plaintiffs Error. *62 restoration, dis- is lie “When a says: province of territory, is Crown, country when from the conquered membered in- of over sovereignty peace, restored - or of Citizens at the time conquest is habitants changed. their union, citizens if born since or since conquest, of become foreign- the province, till the dismemberment birth Law- Pprt tit. sec. cited 2, 1, Personnes, I, Traite des ers.” Wheaton, 897. rence, Appendix of Re- 1798,for the 26, of incorporation
The treaty April the French declared that of Geneva with Republic, public of and' Geneva, who inhabited city territory Genevese in France or became and elsewhere, those who were as' well Frenchmen the treaty native-born nés), were (frangais that the citizens and Mulhausen also declared the annexation and its became and were inhabitants Mulhausen dependencies to these treaties, native-born citizens nés). (frangais Referring “It is understood that these not,however, Lawrence : Mr. says the conditions of the declarations varied inhabitants special from that of the numerous these small countries and republics, France which were between 1789 incorporated provinces 1814. “These relations established as to Geneva and Mulhausen to all the were annexations. applicable ‘ “ were the immediate They Fcelix consequences,’says (Revue et de Droit Tom. II, 328, Naturaliza- Etranger, Frangais page *of union tion every Collective), territory, according (cid:127) law of nations, since it existing longer custom, after the of a even to reduce its. inhabitants conquest country, ” to a condition inferior of the conquering country.’ custom which, This Fcelix has fallen into honorable says, what the disuse, General to re- apparently desires Attorney “ Porto Ricans on vive by placing footing free color in New Orleans at 1803,” is, people time its cession to the United States.
The dismemberment of from a State on populated territory the one into a new hand, and on incorporation nationality as a other, collective naturalization operate ipso facto. either Annexation of cession or as a re- territory, by peaceful 1900.
Argument for Plaintiffs in Error. with it suit of carries war, invariably change nationality. is what is called collective naturalization.” This Pradier Fce- Droit Public, International ed. vol. déré, 1885, Ill, 721. p. an Treaties annexation to individ- generally give option uals to the State whose is annexed. owing allegiance This manifested either option may by emigration simply, a declaration of intention accompanied by some- emigration; times is made without simple resorting emigra- declaration In tion. inaction or case silence adhesion imports order new things acceptance nationality newly —tacit “ It Ibid. is a doctrine of imposed.” p. natural law cession conquest relieves inhabitants peaceful all bonds towards the ter- allegiance *63 sovereign passing their on ritory new enjoins fidelity part regime. In fact, inhabitants had the of choice having leaving or their country residence it is continuing therein, just their in the annexed permanent sojourn should be con- territory strued as a tacit declaration their of fidelity conqueror.” Droit Calvo, International et ed. Theorique Pratique, 1896, vol. IY, 394. p. “ Lawrence, supra, cited of Foelix, na- says by change mere of law results either or from by operation tionality “ former act of the Of the he individual.” cession of says, ter- can furnishes “'There be little or example.” ritory another “ that the inhabitants of doubt,” Halleck, Florida, as inti- says without Justice were entitled Marshall, mated Chief ‘ ’ to the and immunities of treaty stipulation, privileges, rights, of this more extended sense but their term; citizens right to be Union, incorporated participate political was derived from the and not a conse- treaty necessary power, law under the of of the transfer of coun- nations, their quence, Halleck’s Int. 824. Law, 13, try allegiance.” p. § “ alj of A collective naturalization the inhabitants is effected becomes when or in another province country incorporated free cession, or Phillimóre, vol. country gift.” I, by conquest, ed. 1879. p. “ confers the inhabitants thus upon nationality to which territory they belong.” v. BIDWELL.
De LIMA in Error. Plaintiffs is course the United Rico, that nationality to Porto As 143 U. S. v. Thayer, Boyd States. and hence sense, not a country political
Porto Rico of its own. nationality have no can independent Rico. or nation of Porto knows no State law International inhabitants of nations. Its the family It is not a member to a e., i. owing allegiance aliens, persons either can only i. e., nationals, or United than the other sovereignty States. citizens (passive) naturalize, by annexing territory, course Congress may mere cession demonstrated, we have and,, as inhabitants, effect without special stipulation has this transfer of territory in the treaty. declara- effect is therefore merely to that
A treaty provision As was said law. pres- rule of international tory thus subject Persons learned Chief Justice: ent of birth cannot at the time jurisdiction indi- naturalized either afterward become so except by being under the naturalization or col- acts, as vidually by proceedings the force of a treaty by foreign lectively, Kim 169 U. S. Ark, Wong acquired.” A born the United States jurisdiction out person become a citizen naturalized can either by being by treaty, in the case of the annexation of au- foreign territory, exercised either certain classes thority Congress, by declaring to be as in citizens, the enactments citi- persons conferring citizens, children zenship foreign-born by enabling *64 to become citizens the foreigners individually by proceedings tribunals as in the of the natural- judicial ordinary provisions Kim ization Ark, acts.” 169 S. Wong U. 702.
As to born the to the persons acquisition, subsequent question is clearer. even The Fourteenth Amendment has enacted a rule of law into the Constitution which overrules treaties and legislation.
Prior to such amendment had the Government desired to violate the common-law rule States, by adopted could have declared in a that of case like Porto Rico that all of the inhabitants citizens of The should Spain. territory remain
Argument for
in Error.
Plaintiffs
would none the less
United States,
have
the
part
its
would
to a
inhabitants
have been aliens and subjects
foreign
Such
jurisdiction.
an
result
the
would,
absence
incongruous
of Constitutional
have been
The
restriction,
inhabi-
possible.
tants of such
owed
would then have
alle-
territory
temporary
to the United
giance
States such as aliens within its jurisdiction
now owe
but because a
it;
part
territory
populated
aliens that
is none the less within the
geographical
boundaries
the United States. The
could
arise
only
question
as to inhabitants born before
cession,
but as this
has
provided otherwise,
academic.
question
- The Fourteenth Amendment
the common-law rule of
enacting
citizenship
constitutional
settles
dignity
into
provision,
status
born
persons
since the
cession.
Fourteenth
Amendment of the
in the declaration that
Constitution,
‘all
born or
persons
naturalized in the United States and
to
subject
thereof
jurisdiction
citizens
the United States and of
the SÍates wherein
two
reside,’
sources of
contemplates
and two
and naturalization.
Citizen
citizenship,
only —birth
can
naturalization
ship
acquired
by naturalization
under
and in the forms of
But
law.
authority
citizenship
birth
mere fact of birth under
is established
the circum
stances
born in
defined
Constitution.
Every person
thereof,
United
becomes
subject
jurisdiction
at
once a citizen
States
needs no
naturaliza
tion.”
Kim
De LIMA WELL. for in Error. Plaintiffs then to from learned General show Attorney proceeds Scott decision that free were citizens. the Dred negroes admit the free before the war and We negroes during an anomalous the civil war occupied position. of Scott held that the was
The case Dred so simply negro in that the could low the scale States con- humanity not, by him him, freedom make ferring capable becoming in citizen of the the broad or sense. He passive citizen nor was, neither but a therefore, who, subject, being Constitution, under the was different and something apart the rest of humanity. His anomalous thus described Chief Justice position “ In the of the court the and the
Taney: opinion legislation of the times and the in histories used the Declaration language show that neither the class who Independence persons slaves, had been as nor descendants, their whether imported become had free or then not, were as they acknowledged nor intended to be included in the part people, general in used that memorable words instrument. “ It is difficult at this to realize the state of day public opin- in ion relation that unfortunate race which prevailed and civilized world at enlightened the time portion Declaration and when the Independence, Constitution framed United States was and But the adopted. public history nation it in every too European manner displays plain be mistaken. had more than a They century regarded beings of an inferior order and unfit to associate altogether with the white either in race social or and so far in- political relations; had ferior, which the white man rights was bound and that the respect; negro might re- lawfully justly for his duced benefit. He was slavery sold, as an bought article merchandise and whenever ordinary traffic, a profit could be made it. This was at that time fixed and opinion in universal the civilized portion white race. was re- an axiom morals as well as garded which no one politics, to be thought disputing men supposed open dispute; every grade position society acted daily habitually clxxxii —6 VOL.
Argument for Plaintiffs Error. *66 init their as well as in matters of private pursuits upon public without for a moment concern, correctness this doubting opinion. “ And in no nation was this more fixed or more opinion firmly acted than Government and uniformly by upon English seized them on the English They coast of people. only Africa and sold them or held them in for their own use, slavery them took articles of merchandise they ordinary every could where make a and country they them were profit upon far more in this extensively commerce than engaged other in the world. nation “ The thus entertained opinion and acted in upon England on naturally impressed colonies founded this side of the Atlantic. And, of the African accordingly, negro race was them as an regarded article held, property and sold as in bought such, one of the thirteen col- every onies which united in the Declaration of and after- Independence wards formed the Constitution of the United States. The slaves or less numerous in were more the different as slave colonies, found more less But labor was no one profitable. seems to have doubted the correctness of the prevailing opinion time.” How. 407-408, pp.
. “ [********] question with which we are now dealing is, whether a can be a citizen of African race person to a become entitled special virtue of thereby privilege by title to that which, his character and under the no Constitution, one but a citizen can claim. **‡5}:***‡
“ The two them provisions include point them treat them as and make it the property, Gov- duty ernment no it; in relation to protect other this race tois be found in the and as it is a Constitution, Government of special delegated these two powers, authority beyond pro- can visions exercised.” constitutionally Mr. Justice Curtis his uses the opinion dissenting following “ And is apposite under language (p. 583): my opinion that, Constitution of the United free born every on person
De LIMA BID WELL. for Plaintiffs Error. who a citizen of that State force of State, the soil of a also a citizen of the United States. laws, constitution of that to state will opinion. I grounds proceed of the second article of the first section Constitution ‘ a natural born citizen.’ thus assumes uses language birth. be- this lan Undoubtedly citizenship may acquired was used reference to of the Constitution guage princi well understood at the law time of country ple public which referred Constitution adoption citizenship Declaration of of birth. At the Independence place the received doctrine has ever since been, general conformity that free born law, with the common within either persons of. the colonieswere the Declaration subjects King; *67 and the Independence consequent acquisition sovereignty States all such the several ceased be persons by subjects and became citizens of the several so far as States, some of except them were disfranchised by legislative States, adhere, or availed themselves seasonably right in the civil contest British Crown and thus to continue British Coxe's McIlvaine v. Lessee, subjects. Cranch, 209; Inglas v. Sailors' Pet. Harbor, 90; Shanks Snug 3 Pet. Dupont, 42.”
“ A naturalized citizen cannot be President of the United [*] [*] H: M: Hs H: H: nor a Senator States, till after the of nine nor lapse years, until after the from Bepresentative seven his naturaliza- lapse tion. as soon as he Yet, he is naturalized, citizen certainty of the United States. Nor is inhabitant of the District of any Columbia or of either of the Territories to the office of eligible or Senator Bepresentative be citi- Congress though they may zens the United States. in all the So States numerous per- sons, cannot or citizens, vote cannot hold though office either on account of their or or the want of sex, age necessary legal is, qualifications. under the Consti- citizenship truth tution of the United not on the dependent possession or even of any all civil particular political rights; so to it define must lead to error. attempt To what citizens the elective franchise be shall confided is a to be deter- question
8á
Argument for Plaintiffs in Error. State, mined each accordance its own views of the ne- of its cessities or condition. What civil shall expediencies rights and whether citizens, all shall same, enjoyed enjoy or or to be how determined lost, they may gained same way.”' sfc ^ ^
“ It rests with the to frame their consti- States themselves so im- tutions and laws as not to attach a particular privilege to mere naked munity citizenship.” thus condition of the such that was he appears negro was not sense Whether free slave, he legal person. was reduced to there- and, capable something being property, he did fall within which would fit fore, any category man. genus But at that it is him all, classify assuming necessary
be said that he to the class of and further nationals,” belongs was in a himself the Constitution of subclass (under placed United States as the court in Dred Scott interpreted he and that as member of that subclass owed case), allegiance constitu- but was the United incapable possessing in the Federal tional sue courts, such right rights to the citizens which was expressly guaranteed States. to some citizens and were accorded
Thus civil political rights to all save rights negro. our Constitution
It was of removing purpose Amendment enacted. Fourteenth disability *68 into that of from the domain zoology By negro stepped history. immediate obed- direct and
What human beings owing rights reside are in whose may ience to the sovereign jurisdiction they to in a con- for that determine to is a sovereign possess question or merely stitution or subjection nationality by legislation, to of fact, wit, a relation allegiance protection. express were born to inhabitants Porto Rico who subsequent not owe immediate direct, and who do allegiance cession any are or to nation subjects citizens any foreign States.
De LIMA BIDWELL. for Plaintiffs Error. citizens or whatever they possess As such subjects rights that class law. by conferred upon generally nor the laws United States the Constitu- Neither by of that class subdivision exist nature by tion does incapable any character. This anomalous any possessing rights to the free before the Fourteenth confined negro position Amendment. ' from dissents this If the learned General Attorney proposi- ceded can as to the inhabitants of the he tion, territory, only . so held do Taney ground upon Judge negroes not were citizens, capable namely, persons being too considered as therefore degraded come property, within that If the learned counsel means category. anything else than this his is irrelevant. argument
If he means we can this, that his views have been' only say the American by three repudiated war, civil people by amendments Constitution the United States by court, forty years civilization. advancing X. It is erroneous to assume that the decision this case can or will involve the of the United States to right own, possess, or colonies. govern involved question how the United States
shall colonies. From the govern it has beginning possessed colonies dependencies. in his work on
Morris, volume colonization, at II, page of Eussia, speaking says: “ These recent efforts of Eussia if the recall, be digression here that in this permitted, sense the United States have like- wise, their actual throughout career, been in the real engaged work colonization, the extension of the although Eepublic as such generally a recognized manifestation. The observer is casual attach this idea prone the idea of dis- to believe tance, that for the of the term application colony a the latter must dependency, remote necessarily The fact that the metropolis. is, relation is based on certain What mutuality difference can peculiar rights. it possibly make that be isolated possession sea, depths over the seas voyage month, occupying journey
Argument for Plaintiffs in Error. a similar on the land of interval. If the thought separation cannot disassociated, water by settlement of Louisiana, and the California, Northwest well be claimed as Territory some ? In greatest episodes Alaska the in- history habitants are still in the work of occupied colonization.” those territories
That have not been of as usually thought because were not colonies, they from the United separated States bodies of water, does make them large less any colonies. are colonies They as much as just Canada, New or Australia are Zealand, colonies of Great Britain. They been however, better had, and more governed than liberally the colonies any world, history shows that colonization the methods of the Government of imitated the other being nations of world. Therefore new territories, de- acquiring governing have we continuous colonies, extend- pendencies, precedents back the formation of the but in Constitution, ing governing them these territories without as of certain according right been which have deemed immunities Ameri- always fundamental we should be can revers- rights, people equally of one hundred years. ing precedents will It is idle to them these in- say Congress give rights is not what Con- question Constitution. dependent will it can do. what has do, heretofore gress laws which were and has unwise, laws which passed passed court to be have unconstitutional. There declared will not such laws guaranty pass again. of Great Britain not government many years ago passed a law (Ashburton Act) practically confiscating property Eng- land and the courts to fix Ireland, the rents which allowing the tenants should the landlords. Such an act pay .would under our utterly impossible system government, long our Constitution endures. present
The learned General in his Attorney brief, 12, says: page “No one pretends Congress, irrespective limitation could of the Constitution, make and enforce a law properly v. BID WELL. De LIMA in Error. Argument for Plaintiffs *70 in and it vest an- of one cause person property take without other.” no is do this. If there legal cannot Congress
We ask why there % If it be limitation is what limitation Congress, upon no limitation is it is the answer said a moral obligation, Congress reason suppose Is there whatever. do done as was by not willing the United States might did Attorney which thing the Parliament of England, not do could irrespective General claims that Congress of one to take limitations of the Constitution, namely, property it in another ? individual vest are all “These General adds: despotic
But Attorney much less would claim, attempt which Congress powers that a the lesson body exercise.” teaches History scarcely Bather men will not exercise all the which they possess. power in our which we have and the instances true, contrary inconsistent with the own to make laws history attempt to the Constitution would lead us assent proposition hardly learned that while had the General, Attorney Congress these it is certain that would not ignore rights, do so. if Colonies suffer from too usually, much frequently, if from too little. government, ever, rarely, XI. We have now considered one of every the strictly legal advanced arguments support Government’s position. But another class have been arguments and a presented, word must be said in reference to them. has been said the due for constitutional regard limita- “
tions would make us a nation,” like crippled that, hump- backed Bichard,” we would be the stock nations as laughing “ halt we them.” by from the which argument attend consequences may of a interpretation constitutional is not provision always the best but is one which argument, sometimes consid- ered. As was said court Maxwell Dow, U. S. 590: The we is not admit, the most con- argument, always clusive which is drawn from the consequences urged against aof construction of an adoption particular instrument. as in the case before these when, us, But . so consequences
Argument for Plaintiffs Error. serious, so far so reaching pervading, great departure from the structure our spirit,of institutions; when the effect is to fetter and the state degrade sub- governments them to the jecting control of Congress exercise of . powers heretofore conceded to them of universally the most and fundamental ordinary character; when, radi- fact, cally the whole changes the relations of theory the state and Federal to each other governments both these governments has people, argument force that irresistible in the absence of which such a language expresses too to admit of purpose doubt. We clearly are convinced that no such results were intended proposed these nor amendments, legislatures States which *71 ratified them.”
We assert that the which the Government only consequence of the' United States from an fears adverse decision is the neces- for free sity trade between the new or possessions, colonies, and the States of the United States.
It has been assumed that the of certain civil guarantees rights the Constitution by conferred might with the incompatible of newly This government acquired possessions. assumption, 1. of however, is our hegatived: history entirely By past attitude and assumed already acquisitions, By by our new territories. Government regard In all our those of the Northwest only past acquisitions, inhabited but terri- speaking Territory, by English people, n and France, inhabited Mexico, tory Spain, acquired by different and law, we have not people language, religion, on the we have hastened to on feared, but, confer contrary, all and inhabitants liberties which centuries of con- rights flict led our to believe if essential, ancestors not sacred. have
That these concessions not retarded the development or our former colonies territories is matter public history. act The first conceded government Louisiana trial and for the other bill of jury provided by guaranties rights. in the territories wrested from military governments LIMA BID
De WELL. for Plaintiffs Error. and confirmed Mexico inhabi- by treaty gave by conquest tants these rights. been accorded to the
Not have civilized inhabitants they recent of former legislation acquisitions, provision trial of Indians made for the United States cqurts, tried the methods known to the common law they the amendments the Constitution. sanctioned by There is Constitution with the nothing incompatible administration of such It is not territory. proper probable will find it to establish an that we order o'f necessary nobility or or to free exercise religion prohibit right to assemble. people peaceably find it useful to
¥e will soldiers in scarcely quarter houses inhabitants time or to establish torture in peace or- der to witnesses to tell the truth, at compel burning stake as a means of capital punishment.
And if we can Indians why, try methods of ordinary should we to the petit grand jury, deny right people Rico Porto who have accustomed Philippines, law, criminal civil which, whatever Spanish be its deficiencies, Indian tribal certainly preferable customs % should we desire to excessive Why bail require prescribe cruel ? punishment
The Government desires to do none these evidently things. As the of War has said, do Secretary not mean to inter- fere with what he terms: The underlying principles justice *72 and freedom which we have declared into our Constitution, and which are the essential of safeguards every individual against the of not powers government, because these were provisions for enacted but them, because are essential in- they limitations herent in the existence of the very American Government. To illustrate: The of Porto Rico have not people the to de- right mand that duties should be uniform as between Porto Rico and the United States because the of the Constitution provision not made for them.”
We this to show the quote effects which the Govern- exactly ment from fears a decision that Porto Rico is within the United Error; in for Plaintiffs to the not of the common-law
States; rights people, granting colonial the of our markets products. opening “ certain industries” the In Goetze case this involving question, are that their interests in which state have filed a brief they of the United with those of the Government important equally desires, are whose interests, Those commercial States. interests Government is that the American brief, to their according the a tariff have the impose products shall shut them out which would islands, competition. these evident, therefore Consti- the the From the nature of (1) rights guaranteed tution. the of our From the views Government outlined by
(2) of War. Secretary From the attitude of industrial the here repre-
(3) interests sented, From ac- the the Government of óur former history
(4) that the effect of a decision this court quisitions, would be to allow favor Government out of shutting from our markets, words, these other or, places products new taxation of inhabitants possessions of the States States. inhabitants some benefit in its so extent dire its nature great That any danger such commer- from the impossibility follow imposing would so evident certain a factor as to in- hardly cial restrictions is case. fluence decision that of the United even But, assuming people from Porto Pico and the consume tobacco Philip- unwilling it to in their markets, or to allow be sold can Islands, pine constitutional amendment. this by prevent in his General stated The learned Attorney argument colonies at of her case that taxed Goetze products England that Govern- While fact her custom-house. English certain follows a prove absolutely ment policy may admit a wise and beneficent we one, yet such policy as the acts a wise Government, pru- British acts in matters are entitled to finance, respect. Government dent to the fact however, call attention would, We *73 De LIMA BIDWELL. 91 v. in Error* Argument for Plaintiffs markets, from their exclude goods colonies also English English with which a local they possess self-government, for their can care no Government interferes respect, English and, therefore, mother interests as well as the own country, bar. to that at case is scarcely analogous the Constitution no There provision probably of the framers more the wisdom demonstrates conclusively clause. that instrument than the uniformity (cid:127) due to the of this clause was It is the insertion argued House that a desire on of some States majority part in some States build industries should not up Representatives the industries 'of to the loss of in other or, words, others, the smaller States should not be at mercy larger to the States, ones. While this have reasonmay applicable it is to the contention Territories inapplicable according of the learned General. Attorney
But submit that Territories we it is more applicable no because, defenceless, they possess representation, they and should the States burdens them by impose taxing their thus absolute would have products complete to do so. no the Territories power Having representation, could not defend themselves as even a might minority from this form of It is taxation true oppression. without representation only political right. We have assume that the framers of the Consti right ”
tution, were this, that their should realizing willing posterity have no this taxation. As the protection against people Territories could under not, have Constitution, representa there was one tion, them, that could principle protect that was It is uniformity. and the good governed the rulers and the to feel the governing, ruled, pressure same law. If it be said that es the principle uniformity tablished in the Constitution secures the district from oppression of indirect it is not taxes, less true that imposition also established principle apportionment, Constitution, secures the district from exercise of the any oppressive and collect direct C. J. taxes.” Marshall lay Lough Blake, Wheat. 324. borough TERM, 1900. *74 for Plaintiffs Error.
Is it not the that framers Constitution may possible have the in thir- foreseen interested possibility persons at teen States to build themselves desire might up expense orof free from of the Northwest ? Cer- competition Territory more this tainly admirably provision adapted prevent could be framed than that that all duties should be requiring uniform the United States. throughout
We contend, therefore, that far the effects would which of our follow from the of this clause interpretation adoption with ac- being good incompatible government newly Territories the direct would result. quired opposite They would have the inherent which the does Government rights not wish to them. would deny besides, freedom They possess, from that which men have danger English-speaking always most held taxation. cannot be important unjust They repre- — sented their their taxes; fixing therefore, is safeguard, that their rulers cannot tax them without them- equally taxing known selves, the best of human nature it upon principles an so would be difficult to find incident calculated to guarantee inhabitants Territories from newly acquired being their taxed unequally disposition products prop- benefit of certain industrial erties interests.
XII. It is inevitable of the breadth and upon questions here those all presented concerned far-reaching importance in their look on should the result of anxiety settlement their deliberations seek to avoid a conclusion reaching disastrous effect the nation. upon told us General has that the maintenance of Attorney limitations invoked error would make plaintiffs nation, us incapable crippled meeting requirements which this duty impose destiny upon Republic.
That we have a of limited he has government powers frankly conceded. We desire to him that the impress upon dangers such their limitation and to circum- possible inadaptability in a stances arise distant future were might quite present to the master minds from whose contact the instrument sprang has which held nation nullifica- together mighty through war secession, civil for more than tion, a hundred years. WELL.
De LIMA BID in Error. for Plaintiffs for the emergency. They provided for its method the Constitution Article Y prescribes whenever peo- amendment, readily applied of the Government with the contentions pres- ple agree that- the limitations upon ent and determine case, imposed become an ob- to be a or have their have ceased benefit agents for which they sought. stacle to the good government but will leave case this theme, willWe enlarge from two of its justices, hands of court with citations sentimental call and from one whom it is not considered yet of his Father Country. justice often oc Fuller “Differences have Mr. Chief says: *75 has now —but there in court —differences exist never curred been a of time in its when has difference been a there history deliberate conclusions to its to announce its opinion duty to the case in hand.” not unaffected considerations by pertaining S. 634, & U. 635. Co., v. Farmers’ Loan Trust Pollock “ the Con the doctrine because less can we Still recognize in the of time stitution has been found march com sufficiently to conditions within minds to be prehensive applicable time, in their it and not therefore framers, may arising within be from the embraced wrenched it, subjects expressly decision without action des amended by judicial in the mode alone amendments which can ignated organs S. Mr. be v. 146 U. 36. Blackie, made.” McPherson Justice Harlan says: “ If of life, some liberty, property guarantees which at th© time of the national Constitution adoption were as fundamental and as essential absolutely regarded freedom, some, in the ceased have, enjoyment judgment be the United States value, practical people so to the amendment of that instrument.” Maxwell declare by U. S. Dow, 176 617. to his his farewell words fellow-countrymen,
Washington, says: the distribution modifica- If people, opinion tion the constitutional powers any particular wrong, in which let it corrected an amendment th© way 1900. Argument for the United States.
Constitution But let there be designates. no change by usurpa- tion for ; this in one though instance be the may instrument of it is the good, free customary weapon by governments The must destroyed. precedent overbalance always greatly evil or transient permanent any benefit which partial the use can at time yield.”
We submit has confidently been shown to authority the exaction of duties justify complained plaintiff error, of the court below should be set judgment aside and the case remanded with instructions to give judgment for the plaintiff.
New York, 2, 1901. January
Mr. General for Attorney the United States. throughout
I. Indirect taxes need not be uniform the ter- ” ritory of the United States. The Constitution has not for absolute provided uniformity duties under all circumstances.
States still and duties on impose ex- imposts imports duty tonnage, consent ports provided thereto. Art. sec. 2 and Constitution, I, pars. clause of the Constitution refers uniformity
and not to Territories. historical, reasons for into the
(a) its' insertion Constitu- tion this. prove *76 The the United States” phrase elsewhere
(5) “throughout used Constitution refers to States. only I; Article section Article 8, II, section 4; 1, paragraph para 3. See Crowninshield, Wheat. 122. v. Sturges graph Similar should be attached to the same meanings phrase occurs unless some wherever it different in- meaning clearly dicated context. by the The to tax within the limits of is not de-
(e) power 1, rived article section but 1, from the paragraph gen- to make all needful and eral rules power regulations respecting to the States. territory belonging of submission States, to the (d) Govern- compact v. WELL. 95 . BID LIMA
De for the United States. to on under the were stand Constitution, per- ment organized other. The was forbidden to with each Congress fect equality or their between the States several discrimination exercise ports. was made. The full no such compact
As Territories on with the conferred Congress along of taxation was power Con- exercise power and them; to govern power as to both the subjects unrestricted discretion gress possesses levied and those it shall be where where and the taxation places be not levied. shall there is compact between the different Territories As essential for the not Such uniformity favor uniformity. Ter- because the other, States as between each protection and what- States, all of the are the' common ritories property done to territorial taxation is authority' is done as ever and for their benefit. the States equal for and not There are obvious reasons prudence policy (e) uniform must be the revenue laws, throughout requiring the Territories. to uniform also be throughout decided be so to direct taxes. to This is Lough expressly for For the and other reasons, Blake. same reasons borough is true as indirect taxes. well, same revenue, internal license for tariff, made laws,- inconvenient, States, may oppressive, unprofitable, impolitic, Those laws be wise for for the Territories. and politic unwise for other some Territories. very impracticable we does contend possess, ought possess, Congress of taxation system according location, power vary different conditions, circumstances of the Territories. Otherwise will the embarrassed and Government done to actual will be some sections of injustice hampered, our possessions. It is conceded has such vary
(f) taxation local system purposes.
But in no difference between there is reality principle local taxation and taxation territorial upon property. general were
There reasons limits taxation why fixed should be the Constitution.
96 1900.
Argument for the United States. ' between tbe States was the and Equality most prime evident To be attained. that end were object established the rule of toas direct and apportionment taxes the rule of conformity all the States toas throughout duties, and excises. imposts, Story, answering question why duties, and ex- imposts, uniform b.e required cises” throughout United States, says: “ The answer to the latter in a few It given words. was to off all cut undue preferences one State over another regulation subjects their common affecting interests. Unless duties, and excises imposts, were uniform, grossest most and oppressive inequalities, vitally affecting pursuits and of the employments of different people States, exist. might The agriculture, commerce, manufactures one State might built on the ruins of up those of another; a combination aof few States secure a of certain might- monopoly branches of trade and business to if themselves, injury, (cid:127) not to the destruction, of their less-favored neighbors. Constitution, all its is an throughout instrument provisions, well as of It restraints, does checks not on powers. rely in the General Government to confidence interests preserve is founded a all the States. wholesome strenuous jeal- which, mischief, ousy, possibility guards foreseeing exercise which solicitude against may endanger as far as it is If this States, as to uni- .practicable. provision had been omitted, duties formity although power might of the have been abused to the feebler never injury (a does Union us deem- presumption history justify certain), itself, safe have would, been suffi- ing yet quite cient the value of practical sense, most demolish* restrictive other clauses New Constitution. York and an combination with the Southern easy Pennsylvania might, have destroyed whole of New navigation England. A combination of different the New character, between Eng- 'States, "Western have land borne down the might agri- South; culture a combination of a different yet char- have at the struck vital interests of acter might manufacturers.” on Constitution, sec. Story LIMA BID WELL.
De *78 Argument for the United States. the clauses of discusses the Constitution
He cognate relating the all of those States, to taxation clauses are by showing have one and the same and the a of same system object, part within and of taxes the States the the States. viz., regulation “ the without consent of im- shall, No Congress, any State lay or on what be or duties ab- except imports exports, posts for and the laws; necessary executing inspection solutely and on all laid im- net of duties State imposts by any produce for the use of the of and shall be the Treasury ports exports shall be ; and all such laws the revision United States subject without shall, of No State- the consent and control Congress. the of In first draft the lay any tonnage duty.” Congress, “ without No the consent,” clause stood: State, Constitution “ duties on The clause shall or was etc., lay imports.” imposts however, or not, amended without then by adding exports,” six in the and five States affirmative voting opposition, but for consent, and nor such with again, by adding negative; of nine of the United a vote States,” the use Treasury In revised draft' the clause was States two. reported against as thus amended. The clause was then altered its present shape of ten vote States and against one; clause which re- on was then added duty vote of spects tonnage six States one four, divided. So that it against being seems that a strug- for state powers maintained gle constantly zeal the whole discussion. If pertinacity throughout there is wisdom and sound policy United States restraining from exer- of taxation cising power is, there unequally at least, wisdom equal them- policy States restraining selves from exercise of the same to the power injuriously of each interests A other. warfare of petty thus regulation which would rouse resentments prevented, create dissen- ruin sions, amity States. harmony to enforce still their laws is power inspection retained, subject to the revision and control so sufficient Congress; provi- sion made the convenient of their domestic arrangement is. it trade, internal whenever is not injurious general interests. sec. 1016. Idem, tax or be laid
“No shall on articles from duty exported any -
VOL. OLXXXII-7
Argument for the United States. (a) State, shall be No given by preference any regulation or revenue to one State over commerce ports those of Nor shall bound to or from vessels another; one (5) State or duties clear, another.” enter, obliged pay The obvious of these tois object provisions prevent any pos- to lay taxes sibility applying or commerce regulate to the interests one State so as to favor aid injuriously any or If were another. allowed to on lay duty exports one State, might de- unreasonably even injure, productions common stroy staple articles of that State. such a tax would extreme. In inequality some of the the whole their means result from agricultural exports. *79 In others is great portion derived from other from sources; external fisheries, and from the freights, of com- profits merce in its extent. The burden largest of such taxa of would, be course, distributed. very The unequally there- power is, taken to fore, intermeddle wholly away of subject On the other hand, exports. preferences might given either of one or State, commerce by regulations revenue, ports on them local facilities confer or which might privileges or revenue. And commerce such to preferences regard might if under the milder fatal, indirectly form of given equally an or clearance, entry, payment duties, requiring ports the State to or State other than from which any ports 1013,1014. sec. vessel was bound. Idem, ” It is not inherent to in order powers necessary rely upon to to sustain the authority Congress govern territory. conferred. power govern territory expressly It is it without limitation. be to given Subject may general restrictions contained in the but these Constitution, restrictions are not strictly upon power territory; are govern they not local sense.
Such the titles of prohibition or against creating nobility of bills of attainder. passage is no There reservation the Ter- power people ritories. This reservation-is to the of the States. people
The States to the Federal Government some granted powers; others reserved or to their themselves people. BIDWELL. LIMA De for the United States. territory On government subject reserved the States they granted States nothing; rules and it. all needful to make regulations respecting power is the exact converse over States Congress power of its over territory. power
. has for powers In Congress legislating all The States have reserved granted. expressly impliedly other powers. for have
But .territory power. legislating left has all. There is no residuary power anywhere. Congress in a can be no Territory, There except government will of But States are governments organized Congress. with, interfere cannot even except spe- Congress destroy, have power cial matters where the States delegated means the Constitution. laws alone is the of what judge are no
needful. There residuary powers.
II. Power of taxation. which is so This con- territory, govern absolutely power to tax, ferred on includes the either direct Congress, methods. or indirect
Taxation is for the necessary purpose government. must be either Pevenue out of provided, by appropriation . byor local in order assessments, treasury general govern *80 any territory. tax laws “needful” to Porto Pico and
Therefore Hawaiian Islands. we are now about is taxation. Con- subject inquiring has the That is Is the taxation. conceded.
gress power of taxation absolute or limited ? power is absolute some limited others. respects; What are the limitations ? (cid:127) taxes must be the several States Direct apportioned among this Union. compose must be uniform excises Duties, imposts, throughout the United States. levied are taxes, etc., for which be objects may
Perhaps for the States. United also limited common debts, defence, payment and the welfare. general
Are there other limitations ? any I know of none. In all other then, respects, power taxation is We un- unrestricted. absolute, might say properly limited, arbitrary.
It would be that it highly inaccurate, however, say despotic. can fix rates,
Congress taxation, absolutely subjects the methods of assessment and collection. in these Its power is absolute—or respects what for counsel equivalent appellants call but it is not improperly unconstitutional. “despotic;” here is whether on merchandise, duties question imported into the United States from the or into insular possessions, islands from the be laid. States, may constitutionally That such undoubted, so laid unless they may system violates the clause of the Constitution which duties requires uniform the United States. throughout no
There is of inherent or at principle justice personal rights It is matter There is stake. pure geographical equality. or such as have counsel arbitrary despotic power question imagined.
W must under e be one exercised concede Con- power find Constitution, stitution. We outside power nor it, nor it. it, contrary beyond It is of whether correct not, way speaking, question ” “ or it is a extends,” follows,” Constitution goes; of the extent of the conferred on question the Constitution and how far it is limited that instrument.
Federal taxation is either or local. general I. Local under taxes are levied Article section I, paragraph are for the non-state Local taxes territorial support governments.
The Porto Rican tariff is of the local kind. what,
General taxes are of two kinds, direct; brevity, be called duties, indirect, thereby meaning imposts, excises.
Direct taxes must be laid on all the States alike; none may *81 v. 101
De LIMA BID WELL. for the United States. but need not laid on the be, They may be, exempted. territorial possessions.
In the we same contend that indirect taxes must be uni- way the States which formly imposed throughout compose but do not need to be ex- Union; extended, that they may to the territorial tended, possessions. to tax the Territories for local power pur- not limited or restricted. Counsel for would,
poses appellants call a claim of probably, though improperly, despotic power.
The taxes term its author- (using general significance) ized to be within the States Federal taxes. are imposed They within the them- imposed jurisdiction selves constitute in some and, senses, separate independent for exercise, sovereign governments, possessing required their own internal needs to on administration, their own carry of taxation. The power the States to raise money taxation for domestic uses does depend any way upon the Federal Government. The of the United States to right tax for national within the purposes limits property States is a concession made the States to the General Gov- ernment.
The concession thus was given some guarded limitations, and those were naturally limitations such as the States only demanded their own protection prevent inequality. No such condition exists as territory. government whether denominated territory, local or is all Federal. general, All the of a officers are but Territory General agents Government. The of the Territories exercise legislatures delegated powers nothing legislative agents. —are In Gibbonsv. District Columbia, U. S. was de clared that the as a local power Congress, legislating legis lature for the District, to taxes for District levy purposes only, in like manner as the of a State tax the legislature people of a State for state admitted in purposes, expressly Lough has Blake, and never borough since been doubted. “ In the exercise of this like state power Congress, legis- lature unrestricted constitutional at its dis- provisions, may TERM, 1900.
Argument for the States. certain cretion classesof taxation, wholly exempt property tax them other at a lower rate than Per may property.” J. Gray,
If the unrestricted for the right local taxation support territorial it be, conceded, as we submit then it governments is, useful to follow the to further, order show may subject how useless such a distinction to would be as a corollary doctrine denies the taxes for right special general lay on territorial duties when means purposes property by port back carried and forth between of the United States the ports and the islands. laws, Terri- and the revenues of the administration,
tories are to the absolute control subject Congress. the whole may form
Congress repeal government existing in a vacate all the Territory; may destroy offices, legislature, and over take all the funds and absorb into them public common out of Treasury. the Federal may appropriate all the on a territorial Treasury money carry gov- necessary ernment, all local We must not taxation. omitting forget ” to the United is the common States belonging prop- States and of the United is to administered at the com- erty mon and for the common benefit of States united, expense who as a it. own jointly, governing entity, Pico
Porto and the were not won arms and Philippines taken over efforts influence or at the by treaty through inhabitants, of the United expense through might their demand their contribution of upon and upon $20,000,000 Spain, assumption by treaty national solemn United States, which the not the obligations their islands or inhabitants, bound observe keep. The inhabitants of the islands are not joint partners their transaction. The islands are “territory United. States,” belonging United States. The islands were the part things who States were the treaty; acquired party and to whom them, The owner acquired they belong. are not owned the same. thing
It is not a sensible construction of Constitution which very BIDWELL. LIMA v.
De for the United States. do it to do what it will forbid will directly permit Congress is correct, if the contention appellants indirectly, yet, duties on cannot goods it follows that Congress levy import Rico, versa, into or vice taken from the United States Porto for duties are levied those general purposes, although provided the merchan- kind of tax it chooses on may levy any it be into Porto Rico, dise after has been admitted provided take over act then for local by legislative purposes, to be out at taxes into the General Treasury, such paid purposes. pleasure Congress general of the Federal Govern- consideration the relation into Taking of all that it the common ment to the fact property territory, *83 States.; General through Congress Government of the territory, must and administer the support government alone has if it is to have any government; there shall be whether and the discretion as well, power, say and what any territory, organized government any particular to concede such if it is be, shall allowed, necessary government, the means the broadest discretion to Congress determining which from revenue to on sources which the carry of such shall be raised. government far as the In so taxation for local territorial question pur- therefore, concerned, it is clear that tax poses express clauses of Constitution are not and neither the applicable, nor of law exists. apportionment uniformity to tax merchandise in for local Porto Rico right pur- it is what the merchandise immaterial existing poses Congress, consists where it of, or who is its owner. originated, it So also that to withhold perceived levy until the tax merchandise is into a of the United brought port modifies or local States to tax such for destroys pur- held in The tax be in Porto Rico or may abey- poses. imposed States ance until the merchandise in the United reaches port as a to its admission after its admission), when, (not preliminary it be taxed may government support islands. local
One taxed for the of its gov- Territory may support . from Gen- ernment, while another bé may supported wholly TERM, 1900.
Argument for the United States. eral of the United In Treasury States. this there would be a wisdom, technical but the inequality, practical justice might conceded. universally ' The would be question one of governmental discretion vested in Congress, which neither the States nor the courts of justice are entitled to review. of the collection of duties on from legality Porto imports between the date of the evacuation and the date on
Rico which the Porto Rico act took effect has been expressly recognized and confirmed in the act entitled An by Congress act appro- for the benefit and of Porto Rico, reve- priating, government nues collected on therefrom since its importations evacuation by and revenues hereafter collected Spain on such importations under law,” March 1900. Acts of existing 24, approved Fifty- first sixth session, Congress, page This act directs that the amount of customs revenue received on importations Porto Rico since the evacuation of Rico forces on the 18th Spanish Porto October, 1900, to the 1st 1898, January, together further customs revenue collected on from Porto importations Rico since the 1st that shall hereafter be January, collected under shall be at the law, placed existing disposal for the to be used now President, government existing be established Porto Rico, hereafter and for the aid and and for relief of the thereof, education, people public *84 other and works, public governmental public purposes therein until law. otherwise provided by act the Porto Rico for the is
Every provision peculiar local benefit of the insular The revenue is all government. paid into the insular to be used to the local estab- treasury support lishment created the act.
A on Porto special protective duty coffee, Rico, product is laid for the benefit and of the coffee encouragement growers of the Territory. that laws of do not extend
Upon point Congress oper to ation unless such extension be territory expressed I statute, desire, in addition to what was said brief in my the Goetze add the case, additional following remarks: v. BIDWELL.
De LIMA for States. has show that instances of always legislation Many “ than the term United States” considered more something to extend to when a statute territory. necessary designed laws are one instance. The internal revenue the word 15 Stat. where 125, the act of 1868, See especially ” “ (cid:127) Sec. 104. defined to include State Territory. specifically boundaries the exterior Also section where 107, phrase to include all territory is used in order United States” of this within the country. geographical limits to be remarked See also section Revised Statutes. 1891, and not Territories, that this section refers organized one organized territory. criminal statutes Revised extends Statutes,
Section if criminal the Indian which would not be country, necessary extended there of their own force. statutes from Missouri, Thomas H. for a senator Benton, thirty years in as the as able and a statesman distinguished . His views cluded the Louisiana has ever purchase produced. under were on the discussion general question posi strong his tive his service the National familiar ; long Legislature, the course of increased events, to an unusual ity public his the incidents degree practice recording publication his con legislative discussion, as a political great ability and his devotion to the best inter lawyer, stitutional patriotic ests of our render his and statements country, opinions super value. lative Some of his expressions concerning subject of the extension of' the Constitution to the Territories were in the brief of the United States in the Goetze quoted Pepke cases. Still more remarkable the same views passages, evincing which the Government’s counsel have maintained in these argu , are found book ments,' little forth Mr. Benton in put 1857, entitled Historical and Examination the Dred Legal Scott Case.” to of the formation of
Referring Constitution, history he says: “ Who were the to it ? The dele States alone. Their parties it in framed their convention; citizens gates Federal adopted it in the state conventions. The then Territory was Northwest *85 TERM, 1900. 106 Argument for the United States.
in had existence, and been for three it had ; no years yet voice, either in the or of the instrument —no framing adopting dele at no gate submission it to their will'for Philadelphia, adop tion. The made shows was and for preamble States. Territories are in it. alluded to of the instru body ment shows the same every clause, one, thing, except being States; and as Territories, never entities, mentioned political' £ once; and the word but and once, territory,’ occurring as assimilated to in other property, land, fact, and property —as as a to be be sold. thing of—to never disposed Now, sell you a territorial but sell and in government, you property; sense alone does the word and that but occur, once ‘territory’ in the whole instrument. Tried under it, and practice ais without Territory subject, political to right right —no vote for President or or Yice-President, or Senator, Kepresen in tative nor vote even to their Congress; on through Delegate any their officers question Congress re appointable —all movable the Federal even their authority, judges—their be cut even of it to to up Congress pleases; parts be to no under Indians; it, given political rights except spe benefit from act cially Congress; Con granted any or it, named in the act extended gress, specially except specially to like the them, colonies of Great subject dependencies to them Britain. How can the Constitution when go itself, no act of it can under themmnless ex go specially tended? Far from these Territories, Constitu embracing tion refuses to their them, and even existence ignores recognize where it seem be the case of would necessary fugitive —as ' at from service from labor. Look clause. only ap States to States.1 ? Be plies Fugitives Why States — cause the ordinance law of 1787, Territories, organic made that for the Territories, about the same provision “ State, person thereof, one held service labor under laws No another, shall, consequence regulation escaping law or into labor, therein, discharged up from such service be shall delivered party on the claim whom such or labor service due.” Article sec. 2. BID WELL. LIMA
De *86 States. tlie for In both in the Constitution.1 it was before put and words, until a law execution barren it is an provision, organic places in done it- effect—which it to under give should passed act of 1793, applying act criminal and the fugitive-slave both so to States, carrying well .and to Territories into effect 26). (p. ordinance and the Constitution out was carried upon principle The whole Constitution Territories, I speak Territories. the existence of ignoring in contradistinc- and existence organization, political implying as- that, political and land, repeat tion to territory signifying be seen This them. the Constitution entities, ignores and just given two instances strongly every clause— in the article more and still strongly those previously given, there is one If of courts. which to the establishment relates and more others all above which, branch of the Government it than all concerns the'whole others, body community, is the The administration of civilly judicial department. justice, individual of a reach No criminally, may every country. or no condition rich or sex, rank, no conduct—(cid:127) age poor, not even that of virtue and merit itself—is secure from litigious involvement. The first care of the organic legislating is to a to the and this our give judiciary is what Con- people; stitution has as far done, as our carefully system government its action. It has for the trial of required provided all cases could which invoke the Federal between citizens authority—-all States, different between citizens and and for foreigners, all cases under the Federal arising laws—all cases, short, which were not left to the state courts—so that between the two the citizens should systems have for remedy every wrong. Did this extend to the Territories ? Not at all! The Federal does not reach system nor judiciary them, the state systems either. What then ? Are without courts ? they no means. By Congress supplies them, way show that do not “1 Provided, always, person any escaping (the into the same North Territory) west from whom lawfully labor service is any claimed in one original fugitive may lawfully such he reclaimed, and con person veyed claiming his or her service, labor or as aforesaid.” Ordinance of art. 6.
Argument for the United States. do it under the Federal Constitution, conformity any constitution known state in our America. made They judges to hold officefor a term of to be years, removed subject like President, common officeholder,and several have been removed; so codes of they gave both law, civil and crim- over the inal, organized Territories reduced our pos- session, over wild still in hands Indians. the decision of By Court this would Supreme to be seem unconstitutional and void, consequence to set hard on seemed one of the brother whohad acted justices under these laws, who, while in the decision agreeing the Missouri act, did compromise a different reason from *87 would have condemned his own action.1 Certainly all this was legislation with the incompatible Constitution, of no violation it, because the Constitution did not reach these territories, either civilized or savage.” to the act for the Referring of the Louisiana government “ Mr. Benton territory, declared: The bill thus received passed of the President the same it was laid be- approbation day those fore and to who are him; with the acquainted working it of the well be believed that the legislative machinery, whole was in concert with the Administration; proceeding Mr. Jefferson out Mr. to picked Breckenridge bill; bring that its in were settled Cabinet that Mr. principles meeting; Madison drew and that it it, to was every question relation considered before it was submitted final action. And duly this first thus, instance of ac- Congress legislation upon newly was an instance of quired high disregard Constitution as the could conceive, imagination being nothing less than the continuation of the despotism; Spanish regal President Governor King Spain; taking place say myself asking it judge, “It is due to much of a who has nearly twenty years jurisdiction, exercising from the for been western Mis- Rocky Mountains, and, understanding on this souri line to the Con- stitution, penalty inflicting extreme of death crimes committed where only rule, legislation agree has the direct that he Mr, mistake, usurper.” an acting all the and as Justice while Catron. v. BIDWELL.
De LIMA for the United States. the laws Morales; tendant-general, Claiborne place and administered in force American remaining of Spain administration on as if whole going provincial judges, had taken was a des- place. royal government change knew and no one it, everybody thought government, potic - few new members (some the Constitution testing ” the Koran than by (p. 60). the House excepted) these acts—who who estab- the men passed And now for with the Constitu- incompatible lished these governments—so overthis new absolute territory. tion and sofully asserting men Revolution—of ? were Who were they They of that year the ordinance of 1787—of Constitution —of in its Government early first administration the Federal age Mr. Jeffer- of Louisiana. the authors —and acquisition and the State, Mr. Madison President, son was Secretary acted had their filled with men who two Houses Congress new Fed- into operation good part founding putting did these men who eral Government. These were the things to know and who be allowed of their own ought something if did at work; and, not, somebody time existing ought to have known of their dreadful usurpations proclaimed them world. No such was made” discovery (p. 69). of the doctrine of the proprio extension of Speaking vigore Mr. Renton the Constitution territory, said: Mr. Calhoun its effect he it, declared when proclaimed saying: “£I *88 that the laws of Mexicocan have the effect attributed deny (that to them out'of New Mexico and Cali keeping slavery As soon as the fornia). two countries is rati treaty between fied, and of Mexico in the sovereignty authority territory it becomes and that of the extinct, United acquired in is substituted its the Constitution with its place, conveying control over all the and laws institutions Mexico overriding with Debate, inconsistent it.’ 1848. Oregon ££ This is the declared effect Con transmigration to free the author of the doctrine and ; stitution territory is the extent either to be country, great acquired acquired, in which the doctrine is to have All New Mexico application. and California at the time it broached all the Territories ; was
110 1900.
Argument for the United States. now wherever and as much held, situated, as can be added to additions have them —these and considerable, vast already and varied accessions are still Arizona has been ac expected. millions were offered to quired ; fifty Mexico for her northern to include and half, Monterey Saltillo; a sum vast is now of fered and for Sonora down to Sinaloa, Guaymas; Tehuantepec, Panama, Darien, the Nicaragua, Dom Santo Spanish part on Cuba, islands both sides of ingo, continent. tropical at Nor do we the two stop Americas, their and coasts, islands, extensive as are, but they circumvolving terraqueous globe, look at we on in wistfully Sandwich and some Islands, gem and Polynesian group, antipodes plunging pounce down Formosa in the China Sea. Such were the schemes of the last and its administration, must if continue, should policy continue. all Over these isthmuses, islands, provinces, ports, our free, now Constitution them, must we (if spread acquire the decision of Court and over Supreme stands), overriding all law their limits; ruling anti-slavery respective planting African slavery beyond place, ” there to the people prevent (p. 29).
III. HAVE INTERNAL REVENUE LAWS NOT BEEN HERETOFORE
UNIVERSAL IN APFLIOATION. Internal the Constitution internal duties: Under revenue and uniform as the tariff laws should be universal application universal framed for and have laws. Were they application, % been so applied on first internal tax was distilled in the revenue spirits act of 3,1191, which, levied March United was “ that the United States collection, purposes provided one be divided into each districts, shall fourteen consisting act U. Stat. 200. That State.” S. sec. provided pp. all dis duties should be (secs. 15) spirits paid upon tilled within the but no made States,” provision for the collection of not included the tax boundaries of the fourteen States. instructive Other existing of that act Without are as follows phrases (secs. 53, 55): limits other “relanded States;” part *89 WELL. BID
De LIMA Ill the for United. States. ” “ limits of of the United the any part within same; States.” as to 5,1794, June acts, carriages,
The following licenses (id. 373, to retail 376), although liquor same date as “ for the all carriages conveyance per- taxa upon imposing “ ” who shall deal person selling sons and every in the districts collection only wines,” provided respectively, Another the same date act (id. act created the 1791. on tax distilled stills to spirits extends 378) expressly of the river Ohio” south northwest “the territories districts and to erect new appoint the President authorizing another act of that in and still officers region; necessary “ manufactured and refined snuff sugar laid a date duty upon indication that the States,” without any or made in the Terri- over Northwest tax extension of distilled-spirits these additional articles. Similarly also cover should tory duties sold on 9, imposing property act June 1794 (id. 397), several at refers auction, seemingly supervisors ” ” in the fourteen districts States revenue and respective with the tax on act duties, These along stamped paper, only. 1 Stat. 1797, 527, of July 6, phrase “throughout ” were is used, altered, amended, the United States repealed, reenacted various before the acts, and later interval of internal but 1817; whole revenue laws was repealed body were not the entire course shows legislation taxes included in act those outside applied original ex- unless the laws admitted, tax were expressly subsequently tended to the Territories of the United States. Thus, act of 11, Stat. fixed the 1798, 591, July officers compensation the internal revenues, mentions employed collecting those in the sixteen districts States then except forming Union. with the extension of the But, distilled consistently tax the Northwest that there Territory, spirits appears was a that district revenue whose supervisor compensation was fixed 4 of the act of section 2 Stat. 148. 6, 1802, April 1813, act of 3 Stat. 22,. collection of
By-the July direct duties taxes and internal and no jointly regulated, for the collection of was made either of tax provision species
Argument for the United States. outside the States at that time. The eighteen last section of of act, accounts direct requiring the separate taxes and in- ternal duties to be indicates that the sums kept, received “ ” were those received each State enumerated of act. beginning
The act of 2, August 1813, acts therein previous re- ferred 3 Stat. a, and to, 82, note reenacted the various internal duties which had previously abolished, and charged collectors under the appointed acts, supra, erecting various collection districts the States, with the of collection the duties , and section 2 imposed authorized the President expressly “to divide the several Territories respectively of the United ” States and the of Columbia into District convenient districts for the the internal purpose duties collecting and specified thus for the appoint collectors, first time these laws extending and generally comprehensively States outside the limits of the and that act States; provided “
(sec. duties shall be and 3) laid collected in several Territories United States and in the several the District ” manner the same and under the same Columbia penalties ” “ of the old and districts reenacted laws, as in the is, extended the acts to the States; “several existing United States to the District Territories of Columbia.” act In of that such other sections later acts throughout “ within the Territories of the several United States phrases “ and within the and the District of Columbia” United States Vide act Decem- or Territories thereof” constantly appear. 3 id. 21, 1814, 152; 1815, ber Stat. act 18, January law of 12 which The internal revenue Stat. 1,1862, 432, July basis of all the was the laws succeeding provisions amending or new “that the States and provisions, provided supplying ” States and Territories the United of Columbia District divided into districts, should be convenient collection “ “ or within the United States Territories thereof” ” or Territories United States secs. aré the (e. g., J5,82) phrases or used describe locate the or persons subject property tax.
The most March 3, acts are those important subsequent De LIMA BID WELL.
Argument for the United States. March 12 Stat. 1863, 713; 7,1864,13 14; Stat. June 30,1864, was a new act id. the act of 223, 1862, general supplanting for the of which section execution of the law in a provided, or the United States State Territory any thereof, part within the District as soon as Columbia,” authority therein be reestablished, if, shall therein; laws could not be executed and the last sec cause, the into the Revised Statutes as section tion, carried provided ” is used it shall that wherever word State act, construed to and the include Territories District Colum bia where such out the construction is necessary carry pro *91 13, 1866,14 of act. of 98, visions the The act Stat. was July law and the and the duties; also reduced act general largely 15 for the tax 20, 1868, Stat. made new July 125, provisions ation of 104 distilled and act tobacco. Section spirits “ ” the also construed word State and Territory including the District of that the in Columbia, section 107 provided ternal revenue laws taxes distilled fer imposing spirits, mented tobacco, snuff, and shall be held and liquors, con cigars strued to extend to such articles within produced the exterior boundaries of the United whether within a collection district or not. The latter section was construed the court by in 'the Cherokee 11 Tobacco Case, Wall. which 616, determined the section “extends the revenue laws over the Indian Territories as to and tobacco. In all other liquors respects the Indians those Territories are The exempt.” dissenting “ held that it was not opinion the intention ex Congress tend the internal revenue law to the Indian Territory; is an Territory jurisdiction,” on the exempt partly ground express special given Cherokees privilege of 1866 was not law, repealed subsequent general on the that the partly could ground sectionT07 language within the exterior applied boundaries territory United States without the Indian to wit, embracing Territory, to the of Alaska. It was not in the court Territory suggested (United below States v. Tobacco Dill. Fed. Factory, 264; Cas. No. nor in the Court that 16, 528), without Supreme express pro vision these laws would extend to the Territories,
VOL. clxxxii — 8 TERM, 1900. lié for United States. “ must duties, taxes because, constitutionally being States.” debates in uniform Con- throughout an was offered as amendment or that section 107 show gress act the Senate JVIr. and was Sherman, addition to the or debate. Globe, é, without explanation Cong. adopted part éOth 1867-68, 2d session, p. Cong. the act
It is to be noticed that section 1868, 55, supra, 18 Stat. 6, 230, the act of June same 1872, amending (sec. it a misdemeanor to reland distilled making intentionally 12), used within spirits exportation phrase ju- shipped risdiction of the United States.” act of 1870, lé,
Beginning passage July list Stat. of internal revenue taxes 256, large gradually reduced until enactment of the war revenue act of adds no language specially significant phrase former the construction legislation, although given .it our contention confirms as to the Moore, Knowlton post, pur- of the rule uniformity. scope pose do not, taxes a close Direct perhaps, present Direct taxes: rule of apportionment imposed by among analogy, being to their numbers.” according respective the several States were necessarily and their quotas specified respective render general expressions and there were such laws, in which direct taxes were divisions of doubtful the that if remark, however, laid. is worthy intended to be *92 “ - uniform the United throughout which are to be the duties ” universally throughout also acquired must States apply must be uni- as clearly then applied territory, quite dependent are to be which apportioned among direct taxes the versally clause and the-direct uniform duties States.” The the several care the framers both show the scrupulous tax provisions States, and neither the for the Constitution among equality or- fixed and the self-acting rule apply looks beyond annex, future were not but dinance which might to regions the definite nor under States, compact recognized then Northwest Territory. as.to the Constitution their and function rela- How construed has Congress 580, Stat. The act taxes? 1798,1 tive provided direct 115 LIMA BID WELL. De v. for the United States. but not in valuations States, Northwest Territory, this coterminous was although region recognized intimately of the United States, connected or even as a portion under the Constitution. So also the similar act of 1813 thereof, and the Stat. direct taxes of 1813and (3 22), provided (id. 1815 so laid. On the were other 53, hand, direct tax was ex 164) in the District of Columbia pressly imposed by Congress act of before 216, Stat. was the court 1815, Lough enactment itself is that the Blake, borough proof infra. conceived to was Congress interposition necessary, in the District, but collecting machinery provide also to the constitutional the limits of carry provisions beyond the States a.direct tax the United States.” “laying upon And the decision had determined tha-t simply power.
The direct tax 292, Stat. was appor- specifically tioned and the District existing Territories, among the income tax Columbia, although imposed by forty- ninth section of that act was levied annual income upon in the United every person residing States,” Congress careful sections to subsequent provide for the machinery that tax, assessment collection not by any general phrase such as “in “throughout States,” each States and Territories the United States, and in the District of Columbia.”
The census which the acts, direct tax laws based, show that (1 1790 Stat. the marshals of the several dis- 101) tricts one of the fourteen (each States then constituting judi- cial were directed to take the district) enumeration. In 1800 Stat. (2 direction was 11) the marshals sev- given eral districts and the secretaries Northwest Territory In 1810 (id. marshal Mississippi Territory. 564) of the District of Columbia and the secretaries of the additional 548) In Territories were added. 1820 (3 Stat. marshals having then been for the those Territories, officers alone were provided law continued for so the several the act decades, specified, of 1850 Stat. under which the (9 providing machinery 428) censuses were taken until the establishment of the subsequent *93 TERM, 1900. 116 for the States. 20 March Stat. 3, 1879, the act of which 473, Office by Census census within each' State or Ter- the taking regulated, ritory.” has throughout while
Thus, provided Congress for the enumeration which di- its Territories States and have been 1790,when, indeed, rect taxes except apportioned,, was in wild and Northwest Territory large part unoccupied, than some of the it never seems to little more so such taxes must be levied have beyond supposed to the Territories unless saw apportioned fit toso provide. Alaska.
IY. laws were commerce, In 1868 customs, navigation over but not the internal Alaska Stat. sec. 1954), extended (Rev. of the act 20, so far as section 107 laws, revenue July except further Nor was made effect. 1868, any change had 23 24, Stat. 1884, this act of provided respect by but not territorial for Alaska fully organized civil government of March 3, 1899, civil status the act under which government, “district of Alaska” (meaning, 1253, 30 Stat. gives a code of criminal procedure. district) doubtless, judicihl wide application of this act recognizes Section their directs enforce- and impliedly on taxes liquors intoxicating act shall That nothing follows: in Alaska as ment interfere with the public general conflict, way repeal, on the manufacture taxes of the United States laws imposing of revenue, for the purpose and sale liquors, intoxicating ” ‘ In internal revenue laws.’ practice, as the internal known in Alaska have been collected upon liquors duties revenue added when the 1872, Territory December, since tobacco order Executive district of internal revenue Oregon act of 1868, 103 and of sections the authority' under embodied in section the laws for which action supra, also would Statutes, give authority: Revised inter- show, revenue records it seems that as the internal So far been collected in Alaska and duties have revenue past nal the articles to tax Indian subjected Territory only upon *94 117 LIMA BIDWELL. De u Argument for the United States. for of the act of which,
section 107 1868; practical perhaps, conditions reason also pre- might given, namely, after 1868 no in those Territories for a long period vailing to tax those named articles were subject except produced tax section other such articles those districts 107, paid. entering Oklahoma. Y. A was made on the former sources argument point from which the Government has acquired Territory. in the of June 30, The “Indian defined act 1834, country,” 3 4 and described in v. 1729, Stat. States Gallons United 4 93 S. and 95 U. Clark, 204, U. Bates v. S. was 188, Whisky, narrowed under and successive treaties civilization advancing by at the time of and the Indian titles, extinguished Statutes, Revised known region adoption comprised as the the somewhat indefinite boundaries of Territory, Indian which had been and defined as new States Territories gradually were erected. The laws, 4 previous preserved chapter Title XXYIII of the Revised were Statutes, to its applied gov ernment, and it was itself bounded act definitely by March 1, Stat. 1 1889,‘25 783; R. S. and Supp. note. 670, By 2, act May 1890, Territory Oklahoma was erected and and the limits defined to organized, include certain por tion of the Indian and the Territory Public Land with Strip,” into provision incorporating Territory unoccupied of the Cherokee portion Outlet,” and lands in the remaining Indian whenever the Territory, Indian tribal respective owners should assent.
A question between the long United standing States and Texas as title to what was known as “Greer County” involved in that was being act, settled the deci- dispute by sion in United 162 States U. S. which Texas, 1, held that title to that of Oklahoma portion was Territory United the tract had been by acquired States under the with of 1819. It is treaty Spain manifest in that case reasoning and the opinion authorities cited, from the act of especially compromise 9, September Stat. 1850,9 446, which the northern and western by boundaries
Argument for the United States. and all defined, of Texas were claimed territory her exterior was to said boundaries that all the land relinquished, now in- Oklahoma had cluded Territory claimed her successors in Spain title and against sov- under Texas, Mexico and the Louisiana ereignty, purchase, that the of Oklahoma as now constituted Territory embraced either the Louisiana necessarily under purchase under the cession of Spain, of this Texas in 1850. All lies far east of the cession country Mexico in there seems to be no doubt that the en- *95 tire was included in the Louisiana territory purchase, excepting the decided United States v. Texas, to have been portion by' “ under the with and treaty the Pub- acquired Spain, excepting Land lic which was Strip,” apparently part claimed Texas exterior to her by boundaries as which settled, surrendered in she 1850. It is evident that one of these in. the Indian and Oklahoma must have Territory all ways three in since the acquisitions (whatever question been acquired, in variations lines and boundary have surveys) “ the whole of that covered See The country. taken together ” Commissioner of Purchase the Gen- present Louisiana 39. The on 36 36, Office, passage Land page says pages eral embraces . . . all of Louisiana proper purchase of Oklahoma and It is Territory.” the Indian Territory that the Office Oklahoma from the Land only parts learned Louisiana are here in the those included purchase not Territory under the with to have been Spain stated acquired the cession Texas. through the internal revenue dis- Indian was added to Territory as Alaska was in the same 8,1881, way of Kansas
trict August since its Oklahoma, district of ; sepa- to-the added Oregon in remains the Kansas district. from the Indian ration Territory, and seventh section of that the one hundred We have.seen construed 1868, 20, internal revenue act July the internal revenue laws as to Tobacco case carry Cherokee tobacco, snuff, distilled fermented cigars spirits, liquors, act The Oklahoma Indian as then constituted. Territory in ex- contains 1890 (sec. generally applied 28) provision De LIMA v. BIDWELL. United States. are terms all Territories as
press organized, namely, “ That the and all the laws of the Constitution United States so far as modified act, this locally except inapplicable, have the same force effect as elsewhere within the United in accordance section States.” This is 1891 of Re- vised all Statutes, applies provision organ- and in ized Territories hereafter as every Territory organized within the It is elsewhere States.” evident internal revenue laws are not an Ter- organized inapplicable and such taken in connection with the author- provisions ritory, conferred the President section 3141, Revised ity upon are which all the Statutes, internal ground upon revenue are executed the Territories; laws while section 107 organized of the act of basis for supra, original collecting tax 'distilled fermented spirits, tobacco, snuff, liquors, thus far not Alaska, Territory fully cigars organized sense, to which, the act of 1899 legal however, extended the taxes on intoxicating liquors.
It seems that at the time taxes practice present accruing under the war revenue well taxes, as as all internal act, revenue collected in Alaska and the Indian This Territory. prac- is based on tice section reenacted sec- partly (ante), tion 3448, Revised Statutes, under and, the act Alaska, of 1899 on the of the internal reve- (sup?'a), partly ruling *96 nue authorities that these laws to Alaska operate respect so as tax articles in subject the Terri- stamp produced but for destined there. tory means consumption practice no more than that inas former now, and years, growth manufacture of tobacco and in the Indian production spirits and the sale in of these articles Territory Alaska are properly made to their bear burdens under the and law; substantially other articles to tax before the war revenue act of subject 1898 are not in those but must produced Territories, enter them or tax And taxes un- correctly are levied there stamped paid. der the latter its act because construed in the language, light of its evident and has been held purpose spirit, Treasury over those two Department carry Territories. provisions 120
Argument for United States. YI. Porto Rico. Hawaii, of the status of the On this review Territories respect and of the the internal revenue action laws, Con- varying, under different strict conform- gress always circumstances— these laws do to the doctrine that without not, ity special or force of of themselves Constitution, provision, apply or dominion of the to the territorial United States possessions find consistent to —it is and Congress logical recognizing as above shown, the Alaska act validity most as internal duties of ex- general importance, previously there and established that the tended practice; providing with certain laws Uni- and, Constitution exceptions, force and effect in and Hawaii, ted States shall have equal constitute an internal revenue district shall Territory 31 Stat. act of 30,1900, (secs. 5, 87, 141); recogniz- April the act of the internal 12,1900 in section of (id. April 77), ing our taxes at Porto section Rico, revenue excepting statutes of the United internal laws those revenue force and effect in Porto Rico are to have the same which States. in the United in the case of the internal revenue laws to a
Thus, finally, and also in the direct tax case laws—a degree, striking has somewhat uniformly analogous Congress instance — or for the Territories legislated Territory specifically intention to whenever it was their execute those United States and the case in States; laws limits beyond their action has been was the challenged questioned o case, Tobacc wherein was resisted, Cherokee legislation not on which drew in the constitutional au grounds question now because the thority presented, simply it was which, Indian established lawful- exemption had not Administrativé claimed, repealed Congress. of time with period many practice, dealing through long has followed view conditions, novel, different, peculiar no decisions on of the matter with substantial consistency; in which the of the Govern laws can be found soundness these much less overthrown. is doubted controverted, ment view contend the term “United Counsel Armstrong *97 De LIMA BIDWELL. the United States. n Government, the United States means composed
States” re- Territories embracing people States and outlying the States and Territories in both 33). outlying (p. siding the fact that entirely contention they disregai’d In this is used sometimes in a term States” geographical “United sense entity,' in a sense, describing governing sometimes Union. States sometimes as describing of our is that Government It is asserted that theory also of for- collected upon .products duties are to be levied and dreamed that’we could whoever countries. “Until now eign collect our own duties upon, people.” levied duties Confederation,
The days The another. from one State into upon goods brought of their so far as the still denominated judgments foreign courts are concerned. The óf tariff is laws, connection with foreign,” quality im- one inserted the statute. Britain always Great only-by duties on merchandise into her posed brought home ports and does so now. colonies, her Many colonies impose duties ad libitum from the home upon imports country. one of domestic and question of foreign ports, but one to the States and to relating the former Territories, the constituent being the Union and the parts latter being to the United States. belonging On of their brief counsel page make the state- astonishing ment, that for one hundred nearly no distinction has years made between that national domain part which was States and that which was direct Territories. opposite as shown truth, of our Government, history its legislation, decisions. judicial
Counsel assert that the President of the has United States right exercise function. If this is meant legislative, that he is n«t a branch of the Government within the legislative Constitution, no fault can be found meaning with the doctrine. It is too be even elementary alluded to. But when as commander in chief he exercises over con- government he has, quered territory, undoubted law nations, *98 122 1900. tibe United States. not but make laws for the so
right only govern territory functions thus exercised are not a occupied. legislative of the conferred Constitution by part legislative power and have relation it. incidents Congress, They merely under the law of vested the Con belligerent public right, by President as in chief stitution commander of the army and are not but are exercised' They unconstitutional, navy. by Constitution, virtue of the not clause which con by any express but are and duties of the them, fers the functions implied in chief. Such are not commander functions national, legislative and extent but local and relate peculiar, particular This doctrine so of forces. country by occupied military so both asserted, well understood and has been frequently by citation seems executive courts, hardly on this I refer was said subject what necessary. especially what was said brief in case the Goetze my (p. etc.), Howard, court in Harrison, the case Cross v. of the continuance In that case, temporary speaking court Mexico, the said: and New of California government the command the war instituted had been during It was States. government United the President it did not cease, ceded as was conquest the territory when of the res- or as a necessary of course consequence a matter it have dissolved The President might toration peace. who administered officers it, and navy the army withdrawing an end to have it, put might did not do so. but he Congress from the inaction inference right that was done. continued until had to be that it was meant both of a intention No contrary changed. presumption legislatively the causes of have been delay, made. Whatever may can be with consistent that the delay it must presumed of the Government.” true policy would subversive for the of counsel This claim appellant set government destructive of vestige organized every time of our from the Islands and sustained Philippine up time, notwithstanding until the of Manila present occupation to continue the executive has department permitted v. BID De WELL. LIMA Argument for the States. those islands with- the administration government
out or action on its interference part.
VII. TArife the United do not and revenue laws IMMEDIATELY THE
TAKE TERRITORY EFFECT IN CEDED UFON OF CESSION. OF THE TREATY RATIFICATION on the rati- Counsel for contend immediately appellants fication immediately upon Spain, the Hawaiian Islands as of the resolution approval annexing laws the United the tariff *99 thus in territories States, became acquired. operative could not be Such a of and Constitution construction the law and made without to the United ought grave prejudice not to be made unless the clearly Constitution unmistakably the direct it. Such a construction overrule would requires pro- visions of manifest act, Hawaiian pur- Congress of the President in Paris and the Senate pose negotiating treaty.
It is not to be credited that the of the founders Government intended the Constitution and of the United States to have laws such absolute and inconvenient application.
There must be in the nature of a time between the things deed of and the acquisition assumption by States of the full of government when the relation acquired be- territory tween the Federal Government and the will acquired territory In these inchoate. when the particular cases, was ratified and the Hawaiian resolution there were no approved, collection no districts, revenue officers,no provision turning over the proceeds revenue to the General no Treasury, means of the criminal laws enforcing frauds passed punish or revenue, upon anything, fact, enforce the slight- est extent the or the rights Government, of provisions law, which, contended, nevertheless extended to the new Porto Rico nor Neither possessions. Islands Philippine were at the time of their of autono- possessed acquisition any mous of their own after the government Spanish sovereignty eliminated. were of They taxes incapable levying collecting for their own support.
Argument for the States. which be cases of the territory There acquisition of might not even whatsoever, form government organized possess kind. Whether such should of a local municipal would the will have local depend government entirely upon contention of the would create appellants Congress; acts of as to revenue and absurd having necessity extended other matters tracts theory through country were all enforcement, utterly incapable agen- absent. cies being government never
It could have been contended a condition that such law should anarchy theoretical arise. practical Harrison Cross authority against appel- position on this lants point., Solicitor General for the United States.
Mr. a discussion of Before please: entering upon If the court raised in I cases, these five desire very briefly questions grave I do not for the this, of jurisdiction. matters to some refer other than cases disposition securing purpose different counsel have these adopted merits, because constitu- methods of inconsistent testing different suits does not Government exactions, revenue tionality im- an what it considers taken as to be desire acquiescing *100 of course procedure. proper the., court, before the case, fully the Goetze argued In already law- whether duties could taken of the method raising question from levied and upon fully constitutionally goods imported of Con- after the before the act Rico Porto peace act, a under the customs administrative was by protest gress, then the the collector first passed upon then caine the judicial board through regular appraisers, that method was the to this We beliéve that channel court. but that raised, one of the to be sought raising questions proper in has been these method not cases. pursued Lima the De and the Downes the cases, In goods coming the Porto Rico New York were entered under customs duties It is said and the were were under laws paid. they paid BIDWELL.
De LIMA v. for the United States. the for the purpose securing possession protest the were we sub- duties, But they paid. paid Having goods. could not a common-law action the bring mit that importer them back. to recover The case of In re the collector against does not That was a case where 142 U. S. apply. Fassett, the into New yacht pleasure port Mr. Yánderbilt brought it the duties it. He not pay upon did enter York. He collector seized the he yacht to do and when so, declined States court to in United recover action brought proper counsel desired to stand if of the vessel. Now, upon possession been had into the that no articles imported the proposition law, revenue within the they meaning United States and then have taken have to enter the should refused goods, But them. entered secure they possession steps proper and now seek them, they the duties them, and they paid back the recover an action the collector to to bring against the law collector pay money although required paid, and has into the the United States, expressly money Treasury to a suit of this kind. that he shall be subject provided We make the one of also these cases, Downes point sum there not involved sufficient case, money give our States court claim that there must United jurisdiction, being the sum of $2,000, have been involved when appears six hundred odd record dollars was involved. revenue Does that cases? apply Mr. Justice Harlan. General. This is not a revenue case, so opposing Solicitor counsel insist. don’t concede it is a case; revenue They insist it ais common-law action to back unlaw- recover money exacted an officer his and without fully outside authority authority.
In have cases and in suits case, Dooley Armstrong the Government the United States. brought against Court of In case suit was Armstrong brought cases under the concurrent Claims; Dooley jurisdiction Now, Circuit these cases Court. act, .if do not cannot be lie. Suits brought revenue the suits cases, or in either Claims the United States Court against revenue collected officers the Circuit Court to recover back *101 Argument for the United States. That not been States. has jurisdiction given those
those nor such a accorded to who courts, privilege pay into the And the United States. the rea- Treasury money son is obvious. If such is no suits there statute of limita- lie, and the Government could never know the amount of tions, claims from the collection of outstanding against resulting revenue' The Government through agents. has, therefore, exclusive methods revenue whether provided determining not. collected or those methods are When rightfully pur- of the sued, the officers Government are able to tell right along what claims exist it, and can against provide them. On the other if hand, these cases are revenue cases, then sound as I tort, neither court, .understand, takes cases that sort. And so for these rea- jurisdiction sons, which are as we we think, authorities, supported, claim that the courts below had no of these jurisdiction cases.
Now I of the serious come to a consideration very questions court And in order under- raised these cases. order, in and the which I arise, shall stand how the questions to state duties them, I desire categorically specific discuss of which is contested. collected, were validity collected on im- there were duties In the first goods place, from the United into Porto Rico during ported after of the island, signing pro- military occupation of Paris. ratification tocol before the treaty Such- (cid:127) in the case. I some the duties collected Armstrong were exacted duties were first had similar Doo- supposed but I find I am mistaken. case, ley collected on duties im- In the second there were goods place, mili- into Porto Rico from the United during ported of Porto Rico but after the cession tary occupation, Porto ratification before treaty passage case Such duties collected Armstrong Rican act. were in the first case. Dooley collected on im- In the third there were duties place, goods Rico into the United States after the ratifi- Porto ported of Paris and before effect of the cation taking *102 v. BID WELL. De LIMA United States. for the in the De Lima the duties exacted Such were Eican act. Porto case. duties collected on were there goods the fourth place,
In from Porto Eico after the Porto States United into the coming is of these exactions The validity brought act took effect. Eican case. in the Downes question into on duties collected goods coming there were Finally, of the effect States after taking Eico from the United Porto in the exacted the duties Porto act. Such were the Eican case. second Dooley the exacted consider the of duties shall first validity
I the President the Porto Eico by treaty. prior Ex- in Porto Eico claim, we were duties, imposed These the island the prior ecutive order military occupation during the and were ratification of rightfully the treaty peace, under chief, the commander President, levied by acting time when hostilities between the United at a belligerent right, and not and terminated, had been States suspended, Spain not ceded to the Porto Eico had when the a civil when obligation conducting right government I the the President. military authority imposed upon a for am at loss to reasonable grounds opposing perceive any of these exactions. brief in the validity appears of the President in case authority Armstrong a those orders and civil executive gov- providing promulgating an of a for the is attacked exercise ernment island being leg- in a time of islative they say peace, also— —when be- and had Porto Eico had been ceded to United States from a read- come a of the United States. part Apparently, of their counsel case brief, Armstrong position ing this: logically to and Porto Eico was ceded became First. By protocol States. part That Second. followed suspension hostilities Avhich ended the Avar brought about signing protocol peace. the authority an end
Third. That put Avas consequently war Porto Eico under the President power. govern Argument for the United States. these to me
Now, seem so absurd that to propositions state them tois refute them. I feel as if I really ought beg court attention to the pardon calling provisions “ protocol. second protocol says, article, Spain will cede to the United island of Porto Rico.” That cession; that is a to cede in the event promise should concluded peace ratified. The also protocol in the sixth provides article, the conclusion and Upon signing of this hostilities between the two countries protocol shall be not terminated. And it suspended,” further provides *103 fifth that the article, United and will each Spain ap- not more than five point commissioners to treat of peace.” There was no then. There was a peace hos- suspension tilities and a to and a promise cede, that commission- provision ers should be to treat of but there was no appointed peace; and no termination of no cession peace, hostilities, and of Porto and if Rico; the two had countries failed to conclude a treaty (cid:127) had failed of ratification, or that treaty peace, suspen- would have terminated and the war sion of would hostilities our is that have So claim entire been resumed. during pe- concluded, in had been the President was until riod, peace and that me to power; exercise war. brings legitimate another suggestion. there war in about about Porto
Counsel talk peace, being a limitation about the Rico, protocol power placing under the President assume belligerent right. They acting do is war the President can to that under the all It fight. power in order a makes war to win is true the President and peace, in and he that end he as commander chief, to invades fights, it if he he and and and holds can, enemy’sterritory subjugates he has it. After he conquered territory, enemy’s occupies there because there is no one there to fight, stops, fighting not It does therefore cease under his right. belligerent his and. ter- hold this then becomes duty subjugated occupy in until disposed peace, exercising ritory in there he should put government that duty operation entire field of civil that will life, order preserve will cover and collect revenues life sufficient to property, protect WELL. BID LIMA
De States. for the United he thus insti- government provisional expenses pay he courts; right pro- has a has He right provide tutes. but on military questions, courts, purely vide pass upon the occu- man and within man, arise between all questions it seems so These elementary propositions territory. pied do I to refer to the authorities. may to me hardly necessary later. so to refer necessity for but a moment I desire
Now, a new customs system of the President this case providing the com- the war At the time in Porto Eico. began regulations and with Cuba. of Porto Eico Spain merce was largely framed so as to meet were the customs Necessarily, regulations we Porto came and occupied that condition. When the war an cut off. impossibility this trade was Eico, naturally interests of people for the then, having proper regard cus- unmodified, Spanish Porto to continue Eico, force, in force new customs The President therefore toms laws. put circumstances he them developing changed regulations, the interests of Porto Eico to be showed changed they ought free list He on the and of the States. many placed For Porto from the United States. articles into Eico brought all food instance, industry, machinery, supplies, implements he endeavored there etc., put every way operation of customs enforced laws, authority, military system *104 in if force after the con- be continued which might, necessary, until ratification of a and clusion and treaty peace, for the island. should legislate v. 16 How. Harrison, refer in brief to the of Cross
I cases my The 9 176, v. 20 How. Webb, Grapeshot, 164, Leitensdorfer 22 Bank, the Bank v. The Union Wall. 129, Wall. Mechanics' in 246, and the United States Rice, v. Wheat. 276, support reference to did in Eico with customs the President Porto what after the Paris was both before and revenues, treaty and customs the laws Harrison, In the case of Cross made. were of California first for the territory regulations conquered com military in the President through by put operation to that war tariff continued It was a war tariff, mander. of the ratification in after the treaty be enforced California VOL. clxxxii —9 TERM, 1900.
Argument for the States. United to the contention which, opposing counsel, peace according The made California a of the United States. war tariff, part which not the tariff then in force under the laws of the was States, United of the United was enforced ports I when word until, think, was Cal- August, brought ifornia Then there was sub- ratification treaty. stituted for that war order of the com- tariff, by military a tariff that was based and I mander, suppose faithfully customs law then force reproduced provisions and duties continued to be col- States, throughout lected under that tariff until the arrival of of the Gov- agents ernment authorized in force there the laws of the United put States with reference to But customs. the court sustained the of the duties collected under all these validity circumstances, even after the ratification of the It held that peace. which was instituted government Presi- rightfully by dent under the law of continued in force nec- belligerent right, until another should essarily be sub- properly government stituted and all the done by Congress, things provisional under of the President were sustained government authority court said the court that case. The 193): (p. territory had been ceded and was to be preserved gov- conquest, erned as such until which had had sovereignty passed for it. That was the un- United legislated sovereignty der the had been to Con- Constitution, by power given of and make all needful rules and gress dispose regulations other respecting territory property belonging United also to admit States, with the new States into this power such Union, limitations as are the sec- expressed tion in which this of which given. government, Colonel Mason was had its executive, lawful origin exercise of a over a It belligerent right territory. conquered had been instituted war the command of the during President of the States. was when government ceded as a and it did not cease as a conquest, matter of course or aas of the restora- necessary consequence tion of The President have dissolved it peace. with- might officers who administered *105 army but drawing navy it, BIDWELL. LIMA v.
De Argument for the United States. an end to it, could have do so. put did not Congress
he from the inference inactivity done. The that not right was it continued until had meant to be leg- it was both is, intention of a No contrary presumption islatively changed. been the causes delay, Whatever have can made. may true consistent with the that the was must delay be presumed more so as it was contin- And the of the Government. policy met in convention to form until the of the Territory ued people recognized a state which subsequently government, new into the Union.” to admit under its conclusion, Our from of the case: here is the conclusion And of California, that the civil said, is, what has been government did not cease it was from a conquest, right organized of the of the treaty become defunct signature consequence over ceded think it was continued from ratification. We or laws without violation Constitution conquest, it, until and that States, the United Congress legislated into San Francisco were duties imported foreign goods upon demanded and received Mr. Harrison, legally lawfully who his collector received port, appointment, according from from to instructions Governor Mason.” Washington, so far I have treated of In briefly argument questions, arise from the into Porto Rico of importation from goods both the United before and after the States, treaty peace, and before the effect the Porto Rican act. Now, of taking there be said to be involved the collection of course, in Porto Rico on duties United States goods brought under the Porto Paris, before the Rican act went similar effect, into to that which arises with question regard on to the exaction duties into Porto Rico from goods shipped I do States under Porto Rican act. But the United or discuss that at this time. I care to consider prefer question and discuss the which has been raised, to take up question is the vital as to the effect of some respects question, the relation of Porto Rico— the ratification of treaty upon and of course the because Philippines —to that is the these cases. primary question contend the ratification Counsel treaty, *106 TERM, 1900. the States. for United of Porto Rico to the United that terri States, the cession within the became of the United States of part tory meaning to the Federal Government, the grant general taxing power the in limitation contained which re subject provision “ all and excises to duties, be uniform imposts, quires through out the United States.” In the effect the treaty, discussing I shall not the historical so and elab repeat fully argument discussion of presented by orately Government case. I shall Goetze rather after over the terms attempt, going of the of the Consti treaty, analyze pertinent provisions tution of the United with a what States, view determining was the real intended the framers of the Constitu meaning ” tion to be words used United States given connection.
Reduced of the the denial proposition, legal exercised and is President and exercised by has being the new amounts this: Ceded possessions, the act of an becomes, cession, territory integral part own to which the Constitution its force at States, United on its its its an once ports placing people, products, applies, them all immediate ours, conferring upon equality under and immunities the Constitu- enjoyed privileges, rights, and the several tion ports people, products, n of the Constitution the limitations Moreover, States. apply here, taxes, duties, the same ex- there as imposts, requiring and the same trial collected, system cises Anglo-Saxon Their, become at once our to be used. people peo- by jury our become their citizens the United ports ports, ple, are free to come here or and our markets their markets. They taxes and our laws, to sell their while our however here, products must there. unsuitable, go It is
There is obscure about this doctrine. plain nothing act of is all effect im- unmistakable. The cession powerful; is mutable. As soon as the title the territory passes, incorpo- within and the Constitution rated the United States, exprojprio is true as does the rest. The stated, vigore proposition true at all. Either mere act cession, irrespective I consider (which shall terms later) regardless LIMA BIDWELL. De States. Argument for makes part territory of the action Congress, acquired not. or it does sense, constitutional so territory, it the treaty-making power, If does, acquiring is concerned, necessarily of that status as the far make It can mere act of cession. limited to providing or for It cannot take temporarily provisionally, no terms. no it can grant It can or that. give pledges; this purpose ; for future no questions disposition it can reserve privileges; and granted called power, in short, although treaty-making it can- functions; of its limitation, without proper stripped *107 ridiculous. it is lame, not treat; impotent, impossible, act the mere not, if does hand, other On the territory of the United an of become cession, integral part immediately of of sense, in the constitutional necessity provisions determine whether action must and the the treaty Congress the United or be deemed a shall or shall not become it part terri- if words, when. In other States, and, ever, acquired of the United States becomes not a but a possession tory part to use the of' the Constitution, —territory, language belonging rest, States—and United government disposition and with under the with Constitution, treaty-making power Congress.' it If to the
Mr. Uni- territory belonging Justice Brown. it then does fall within.the States, ted provisions Ding- duties be assessed from act, upon goods ley requires it not ? countries, does cease foreign foreign country within the I think mean- not; General. Mr.- Solicitor of the customs law. The law as all treated foreign ing Dingley outside of the States, limits territory meaning then treated customs States and Territories purposes until remained saw States, condition Congress fit to it. change Mr. 9 How. Jus- 614,
In the noted case Fleming Page, demand ces- tice “the United States Taney says in order to the condition of sion indemnify territory peace, or to reimburse have suffered its citizens for the injuries war.” And for the Government expenses Justice I also refer Chief connection language might OCTOBER. Argument for the United States.
Marshall the famous Canter Case, Peters, which he 541, “ says becomes a acquired nation to part which it is annexed either on the terms in the stipulated treaty or on such cession, as the new master shall And impose.” in the case of Cross v. 16 How. Mr. Harrison, Justice uses this Wayne the ratification of language (p. 197): By California became a treaty the United States.” So part did, international sense—in the sense—sub legislative to the dominion of the United ject to be ruled and regu lated under the by Congress, to make all power granted needful rules and regulations respecting territory belonging United States. And he continues: And as there is nothing differently stipulated to commerce, respect it became bound and instantly the laws privileged had to raise a revenue from on passed duties and ton imports nage.”
Mr. Justice Brown. That case did not involve the question involved here anof from California importation New York.
Mr. Solicitor That is true. General. involved a different quite question. Mr. Justice Brown. a case of That involved an importation admittedly foreign into the United States. country Yes, the court did if although say,
Mr. Solicitor General. that if I remember these had been correctly, allowed goods *108 authorities to enter California free of military then duty, have been on them in the would exacted duty United ports States if taken there. Here is what the court “ on says 192: page
The best test the correctness of what has been said just That if such had been landed this: there free, goods duty could not have been to other in the United shipped any port without liable to Of course, being pay duty.” California and it much was was better, as contiguous territory, very a to it soon as within matter bring possible policy, oper- the customs laws of and ation of the United States, was But to what was done. that does not Porto Bico or the apply Philippines. if
Now for the may territory acquired purposes, mentioned it Chief Justice Taney, purposes, certainly BIDWELL. LIMA
De States. Argument for the United such conditions may proper and held upon be taken may ac- into effect. Territory to purpose carry and necessary and held as a be taken reimburse indemnify quired or indefi- provisionally, temporarily, a or as possession, pledge, and control suit- reserved disposition power nitely, To such terri- end. the desired incorporate able accomplish of the United States make part into the Union tory Once there it of the acquisition. defeat the object would very exists Union within power would have stay, it. dismember take terri- we cannot
If Justice Taney wrong, Chief but to make us, only or reimburse to indemnify sub modo tory the President carries before United States, then, it a part ad- ahead his send he should into the country, war enemy’s whether to ascertain report commission vance agents—a fit to be to invade and he subjugate proposes For neither the observe, of the United States. made a part to the con- can, nor Congress according treaty-making power if that result tention of the other cession follows side, prevent Before the President sent to Manila he should. Dewey conquest. satisfied himself that were suitable for 'have Philippines into the for we could Union, Spanish incorporation destroy at the risk of to assume the there burdens having ourselves. sovereignty while the President and Senate Constitution, vesting Constitution, that: This treaty-making power, provides and the laws of the United States which shall be made pur- thereof; made, suance and all treaties or which shall be made, under the of the United shall be the States, authority supreme law of the land.” The of Paris was made under the treaty of the United and contains the terms States, authority territories. It is this, which we these unique acquired civilized former treaties cession all provided while — territories should ultimately inhabitants of the ceded citizens of the ultimately immediately, —become States, and be incorporated civil their status left the determination rights political *109 Congress.
Argument for the United States. State that proposition again. Mr. Harlan. Justice I of Paris is say treaty Mr. Solicitor General. that while former in'this, such unique treaties, as the Florida the Louisiana treaty, others, that the civi- treaty, provided lized inhabitants the ceded territories should ultimately —not but immediately, course of time—become citi- ultimately, zens of the United this States, Paris, left treaty, treaty the determination of their civil to status rights political Congress. Mr. Justice Harlan. What has used the word civi- treaty ” , ? lized I do not assume to-quote precise
Mr. Solicitor General. of the but language particular treaties, state the effect simply of them. Shiras. Eussia used that term. treaty
Mr. Justice Mr. Solicitor General. the Alaskan Yes,, does use treaty it. the uncivilized tribes there. distinguishes Let me refer to some of the of Paris. provisions treaty ceded to the United States the island of Porto the is- Spain Eico, of Guam, land and the known Is- archipelago Philippine lands. natives the Peninsula, Spanish subjects, such residing were one from the of the territories, ratifica- year exchange given tions—that until is, 1900—to their April preserve allegiance in a a declaration court record. In Spain de- by making fault held to renounced were have it and to have adopted nationality territory they may reside—not have of the nationality adopted to which the ceded islands, to have adopted of the in which nationality reside. Then they may after that comes this : directly The civil provision rights status of the native political inhabitants territories here- ceded to the United States shall be determined the Con- gress.” in the territories were to be under
Spaniards residing subject, Article to the XI, jurisdiction courts country —not the courts laws pursuant ordinary States— or civil governing Spanish law—and presumably same— were have the same right course appear pursue *110 v. BIDWELL.
De LIMA Argument for the United States. ” of to which the courts
therein as citizens the country belong —not citizensof the United States. Article reads as fol- IY for the term of ten lows : The United will, years of the ratifications of the date of exchange present and merchandise to the admit treaty, ships ports Spanish same Islands on the terms as and merchandise Philippine ships of the United States.”
With to it is obvious unless this, that, separate sys- regard which tem of customs is for the regulations adopted Philippines, into the from the United applies goods shipped Philippines then the if throws States, observed, treaty, open ports im- Philippines absolutely Spanish ships Spanish an door into the portations, open Philippines, provides thence into this for whatever fit to sees country, goods Spain send there. I do not intend to an pursue argument policy based but attention to call the fact provision, simply that the itself the view that these islands were treaty negatives become the United States within the part meaning our customs laws. for ten scientific,
Again, years and artistic Spanish literary, works were to be admitted free of into all the ceded terri- duty tories, and that as counsel has in- provision, stated, has been into the Porto Rican for corporated act, purpose carry- out the In ing pledge treaty. short, neither these can be carried if out provisions Constitution our requires customs regulations those islands as here apply United States. of these purpose provisions under plain. Although power protection United States, territories
are to have their, their own their own laws, courts, own ports, their own their own commerce, their own citizenship, system of revenue. A and distinct existence separate under, with- out, constitutional purely sense, used general grant taxing power, contemplated. to the both knew that parties the location and con- dition of these islands would not their into permit incorporation the United States and the to them of laws of' application those and of commerce, civil and revenue, criminal procedure
Argument for the United States. the Constitution, to the contention of according coun- opposing sel, to be uniform the United States. requires throughout They provided, therefore, which should system government to local conditions and needs. adapted Now, we free to disregard plain provisions which the Constitution shall treaty, law of says supreme the land ? If what so, becomes of the consent of the treaty- Would the making acquisition? President and the Senate have consented take the territories other upon any *111 Would terms ? have consented to Spain cede them ? Certainly intended to never make these islands, with tropical their and half-civilized and civilized savage people, part in United States the constitutional sense, as cer- just did make them a of the United States in tainly part inter- national sense.
Mr. Justice Harlan. What do mean the international you sense ? I am The term just going explain. Mr. Solicitor General.
“ ” the United States mean the which may territory governs, or the over which the Government extends. territory constitutional, former is the the latter the international, or, ,the In the be, the sense. latter in sense, inter legislative national or States sense, all legislative Territories, places the national combine to subject jurisdiction power, constitute what Chief Marshall in Justice v. Loughborough “ “ Blake, 5 American Wheaton, termed The 319, Our Empire,” “ “ term,” Does this said he, Great Republic.” referring United the whole or States,” particular “designate any portion of the American ? It is the name to our given empire great which is of States and Territories.” The republic, composed Chief Justice was correct that the tax clearly great holding extends United States in the inter ing power throughout national the limitation sense, although of the Con legislative on stitution for Federal taxing we purposes applies, contend, the United States the constitutional only throughout What is, course, sense. we concerned the constitu the vital is whether tional sense. For the constitu question the Federal tional limitation taxing power applies v. BID WELL. De LIMA States. Argument for United ” “ territories. in the new States the United operates throughout in the As stated preamble— such find case where any Do any you Peokham. Me. Justice now—between make drawn as you has
distinction States the United sense and in the constitutional United States %sense in the international desirable. if it were I could I think G-eneeal. Solicitoe Me. ” “ States the United words these what on to show
I am going it. apparent I think perfectly sense. mean in the constitutional “ sense international in the States” that the phrase our dominion. is all which subject comprehends state, but what you I understand Yes; Me. Justice Peokham. across mind, have was whether had.come you my question drawn, distinction in which such research, case your sense in the constitutional between the United States international sense. distinction has been clearly Geneeal. Me. Solicitoe ” in a court between the word decision State drawn ” in the Constitution and the word State as used a used treaty, in the international sense. it was held in Thus, Geofrey Riggs, that the 133 U. S. District Columbia a “State” in it not a the international State within the sense, certainly That Constitution. has been held meaning expressly *112 v. in 445. Ellzey, Cranch, Hepburn in As stated of the Constitution United preamble, was ordained and established States “the of the people States” “for the United United States of There is America.” “ about the of the words States ambiguity United meaning as here used. America,” mean united under the States They and are Constitution, named in the second sec- individually of the tion first to article, relating apportionment repre- sentatives the then United among States. existing
Me. Justice Haelan. con- United States—those existing United States ? stituting existing Me. Solicitoe General. I did No, that. I said that say not the United which States framed and the Constitution adopted in named the Constitution at the stated. specifically place the thirteen were colonies which had first become the They tlie United States. in States the Declaration and under the Confederation, their which, through framed the people, Constitu- present in other tion, order, to form a among things, more perfect Union.” There never was any doubt those as to days what term meant. This from conclusively appears the sixth ar- which that all ticle, debts contracted provides before the adop- tion the Constitution “shall as valid the United against States under Constitution as under the Confederation.” And that would include the States,
Me. Hablan. Justice which course, afterwards came into the Union before the debts were %paid You could were say hardly
Me. Solicitor General. “under the Confederation.” were not “United States They under the Confederation.” the debts would be Undoubtedly States, the United valid States which against including were admitted. subsequently make a distinction mind you your
Me. White. Do Justice from or is distinction, there consideration which you this case, to between the States and the Territories have given and the States, of the United territory ” ? Does not territories these United States cases refer to territories which have Con- which you quoted thus them has government, making impliedly gress organized ? Does the “ Statés article the United of the Con- part ” stitution dispose territory giving power suggest which Territories have been between the distinction organized, the United States as such ? and “territory” belonging honor mean to ask your me Does Me. Solicitor General. came within whether territories subsequently acquired make all needful thus rules and granted for the territory regulations government or is confined existed simply Constitution, at the time of outside adoption ? thirteen States Chief Jus language quoted White. You
Me. Justice and then Blake, tice Marshall Loughborough you speak *113 in the constitutional' and the international United But words United States.” sense language v. BIDWELL.
De LIMA for States. United “ in which he Our Great Re- Marshall, spoke Chief Justice used was with reference to American Empire,” public,” the exercise taxing power. oorrect, I it was. He was as I know
Mr. Solicitor General. of the United that the taxing power in his conclusion it, take to the United over all territory belonging States extends all States and Territories if over extends States; I think what he it. But says— sees fit to exercise the limitation that duties, claim which is the basis of the uniform throughout shall excises, imposts States—was not well to the Territories as States, applies and I am en- him, before decision case requisite was incorrect. argue deavoring That is My question my question. Mr. Justice White. statement
to ascertain whether were you challenging were con- whether Chief that case or you Justice Marshall in it. curring I
Mr. Solicitor General. have to it. challenge mean? Mr.- Justice Brown. The you general expression, Mr. Solicitor General. I at looked say point view the decision he was because in correct, a geographical sense “the States,” United which throughout Congress may exercise Federal includes neces- taxing power purposes, all to the dominion of the States. sarily territory subject that is the Now, international or But I sub- sense. legislative mit constitutional sense covers and was so intended the framers of the Constitution. source of the was the primary sovereign power people
of the thirteen States.' men These believed were original endure for would would forming government ages, dominate outside—islands continent, probably territory the seas. In the of alliance which beyond Benjamin Franklin concluded there was this France, 1YY8, provi- fifth sion in the section: “ If the think United States should fit to the reduction attempt British northern America, power remaining parts or the islands of Bermudas, those countries islands case shall be confederated success, with, said dependent upon United States.”
142 TERM, 1900.
Argument for the States. United from we can how So that see the of vision far-reaching men of the stalwart the early Now, days. notwithstanding does not outlook, the fathers of expansive appear “ the Constitution worried themselves about of the consent the outside of the States governed”- lived which alone in, were participate formed political a power. They govern- inment which of the States were alone people represented a Constitution adopted which, distribution limita- of tion almost powers, applied to the united or wholly States, several.
In case of early Hepburn v. Cranch, 445, Ellzey, came before the Court question whether a citizen of Supreme the District of Columbia could maintain an action against citizen In of the in- Yirginia. Mr. Lee support jurisdiction “ ” sisted that to give term a limited State construction would deprive citizens District general rights citizens of the United States and them in a worsecondition put than and he aliens; in the put pertinent whether, question “ face tax or be laid shall on duty provision any from State,” articles could tax or imported Congress levy District on But articles Columbia. duty exported the court held a citizen the District is not a properly citizen of a and cannot use the United States courts as State “The members of the such, Chief Marshall saying: Justice are the States in the American contemplated confederacy Constitution.” which in connection with a I made
Yesterday, quotation Mr. Justice Blake, from the case of v. White Loughborough put me a which he desired to whether my opinion question ” the words the Territories I difference between recognized any “ the Justice Marshall and as used Chief territory” under I the Constitution places disposition Congress. nor the full did not hear the distinctly question comprehend I do not that the it. recognize purport States ceases when such over territory belonging under territory brought operation organized but I do be-' States; distinction laws recognize and the territories which Chief territory tween unorganized BIDWELL. De LIMA States. Argument for the United If I have referred. gave Marshall possibly Justice those that, using that I intended say court impression Terri- to the States referred Marshall Justice Chief words, the domin- under all ta cover thereby tories, meaning whether defined, correctly which I had ion of the United I think I was wrong. asthe international meaning, incorrectly, Marshall had Chief Justice to think that what I am inclined ” sense, meaning legislative mind was United States Columbia, District of the Union, thereby *115 had the applied to which Territories, Congress the organized all terri- thus laws of the including revenue United “ the States,” the designating within the United phrase tory revenue laws of the had to which applied Congress which are four meanings the there So, United States. really, the “the United States.” be conveyed by phrase may what itself, mean In the first it the sovereignty may place, “ that Chief Justice Marshall called grand corporation.” it what Chief In the second mean, may geographically, place, “ American Justice Marshall calls Confederacy,” composed the members of the the States inhabited Union, people who of the United States; Government participate this what I have termed constitutional sense.
In the third it sense, place, geographical legislative mean the States the District of Columbia and the Ter- which has ritories, seen fit to treat as the United States Congress for over which has legislative extended, purposes; Congress and which it has laws the United States which applied, are applicable.
And in the fourth broader, mean place, may something is the which international as I all ter- sense, it; is, take wherever ritory, under the dominion of the United situated, States, whether not, whether ever organized brought within laws of the States. United operation specific And our claim is that does not become newly acquired territory of the United States until Con- part sense legislative shall so gress determine. In the case of Cranch, 452, Hepburn Ellzey, “
Marshall, C. defined he J., the American said: Confederacy,”
Argument for the United States. “ Tbe members of the American are Confederacy the States in the Constitution. contemplated House Representa- tives is to be of members chosen composed people several States; and each State shall have at least one Rep- resentative. The Senate of the United States shall be com- of two Senators from each posed State. Each State shall ap- for the election of the point, a number of Executive, electors to the whole number equal of Senators and Representatives. ’ ‘ These clauses show that the word State is used in the Con- stitution as a member of the designating Union.”
The States alone are the members of the American Confed- eracy. constitute the They Union, the Union and The are terms in equivalent the Constitution. Thus “ ” the Constitution and the laws United States are made law of the supreme land; yet Congress provide “ forth the militia to execute the calling laws of Union.” All vested legislative powers granted Congress States,” the President is from time to required time to information of the give state' Union.”
In the article, first it is defining legislative powers, pro- vided that “ and direct taxes shall Representatives apportioned *116 the several States which be included within this
among not the Union.” This does include but Territories, does operate, the United States. evidently, throughout “ and excises shall be uniform Duties, imposts, throughout This, claim, the United States.” we is lim- geographical itation, indirect taxes requiring operate generally throughout the the United States—that several is, States among composing The the Union. of this will history adoption provision be found form in the of Mr. Jus- learned opinion interesting in the case tice White of Knowlton U. S. Moore, sus- the tax Federal on In constitutionality taining legacies. draft the the provision prohibiting preference original any of one State those of another, over ports that-conferring were power, They limiting taxing placed together. mean the same the States of the shall really Union thing, alike commerce be treated and the regulation imposi- v. BID LIMA WELL.
De Argument for tlie United States. in each case was a uni- taxes. The
tion of uniformity required several and this Union, States formity among 11 Wallace, decision Case, shown CherokeeTobacco of the act 1868 extend- constitutionality 616, affirming on tobacco to the Indian the excise tax alone liquors ing A of the court held view of that, Territory. minority was not the intention of to extend Congress provisions, the tax on and tobacco to the Indian Territory. even liquor al- that, the court was unanimous Obviously, opinion within the exterior boundaries Indian Territory though of the Constitution of the United requir- provision did uniform States excises to be ing throughout' within Indian Territory. apply The Constitution commerce gives regulate Congress power “ uniform and to rule several establish States,” among naturalization uniform laws on the of bankruptcy subject “ submit that this throughout States.” we Now, latter was to the mischief remedy from the diverse resulting of the several States these sub- conflicting legislation uniform jects by securing provisions throughout the Union. I refer to No. 41 of the Federalist, written Mr. Madison, in which he uptin point, such was the says object of that provision. laws this character early applied within the States. The recent acts have properly extended to the Territories, its discretion fit has seen include within the limits of the United States, treated. legislatively It is no tax provided laid shall be on duty articles ” exported State; but any is said about Ter- nothing any And that ritory. shall be preference given by any regu- lation commerce or revenue to the of one State over ports those nor shall another; vessels bound to or from one State ” obliged enterj clear, duties in pay another; noth- said about the ing ports any Territory. prohibitions tenth section of the first article ap-
ply only States. “No State shall bill of at- pass *117 tainder or ex or law post law, impairing obligation facto or contracts, title grant any No State shall, nobility.
VOL. clxxxii —10
Argument for the United States. on the consent or dutiés without Congress, imposts lay any etc. All these limitations only to. exports,” apply imports the States Union. Executive article,
In the second which defines grants it is date on determine the provided power, which electors shall their which shall be votes, give day same Uni- States.” throughout Necessarily, means alone ted States here the States of Union take the President. it is that dur- electing Later, part provided, his term officethe not addi- receive, President shall ing his tion to stated emolument from other compensation, any the United States States them,” showing were united alone mind. think in that connection that you
Mr. Justice Brewer. Do various Territories add to can the President’s salary; view of can the Territories add to the emolu- that, various ? President ments I think the of this would spirit No,
Mr. Solicitor General. that. I think no direct to the Ter- there is application prevent of it would what forbid but I'dare you ritories, say spirit a certain be treated sense, action Territorial might, suggest. could that a States, Territory as the action of seeing un- of the United States, being outside of authority not act It in a certain control of Congress. might, der the complete aif Terri- States, of the United the action be treated as sense, that the I However, say to do that. prefer attempted tory and would what prevent of this applies provision general spirit honor. your suggested by of the United third article applies judicial courts held that territorial States. has repeatedly not therefore, courts are, article, under this organized in mind thé The article constantly keeps United States. and of those States to several of the United relation is made No mention to one another. their citizens citizens. or their Territories State and its each fourth article guards rights other State. The acts public citizens every respect in all The citizens faith credit others. full have each shall *118 v. BIDWELL. De LIMA 147 tlie States. for United be entitled to immunities of the shall privileges of each from States. shall in the several Fugitives justice citizens ” “ into Union; be admitted new may surrendered; States to State form Union and a every government republican is no But there what- guarantee is safeguard guaranteed. ever the case of a its citizens. No Territory republican form is for the Territories On the government guaranteed. to the' and fol- contrary, States, just guarantee preceding for the admission new the fol- lowing States, provision is made:' lowing grant plenary power shall to all have make needful Congress power dispose rules and other regulations territory respecting property to the United States.” belonging
Notice the is treated as phraseology. Territory property, distinct be- United something something States— to States, bé ruled longing subject disposed in its discretion as conditions with- by Congress require, out framed for being restrictions were hampered the States. do Right there, you understand that
Mr. Justice Brewer. has absolute over Congress power territory to do as acquired, with it ? pleases I; I deny shall utterly, Mr. Solicitor General. No show honor. your Mr. Justice Brewer. What limitations?
Mr. Solicitor General. I shall out limi- point specifically tations later. I say all Congress subject applicable I limitations, and shall out later what I point mean by applica- ble in view limitations, decisions this court.
In the case of McCulloch Maryland, Wheaton, 442, which the of the United supremacy States within the sphere of its action was sustained, Chief Justice Marshall, emphasiz- on ing conferred authority to select the means for into execution the carrying vested Constitu- powers said: tion, to make all power needful rules and regulations or other respecting property belonging United States is not more than the comprehensive TERM,
Argument for the States. shall make all laws which necessary carry- proper into execution the Government.” powers ing he took territorial as the test and Apparently, grant standard of as the maximum of plenary power, comprehensive- ness.
The Thirteenth Amendment contains an explicit recognition the fact that a of the United subject place jurisdiction of the United for it necessarily part pro- *119 nor : “Neither slavery vides as a involuntary servitude, except for crime whereof the shall have been punishment party duly shall exist within convicted, the Uuited or States, any place to their subject jurisdiction.”
In this connection, the cited addition to instances many the General has distinc- where drawn a Attorney by between the tion the let me refer States and Territories, the im- 2, 1807, 426, the act of 2 Stat. to March prohibiting this That act into country. provided slaves portation to or be unlawful any import should bring person I am now, any quoting country foreign any slaves— —“into thereof.” And in the sub- or the Territories States this act, 3 Stat. 450, act 1818, supplemented sequent the first section was used, providing the same phraseology “ into the United negroes be unlawful import any it should thereof.” or Territories States a
And court drawn dis- fact that this has the as illustrating court Territories this the before tinction between rights state from States and territorial distinguished legislation, n case of Bank Miner's I refer the court wish to legislation, court held that the valid- in which the Howard, Iowa, v. of a bank act the charter granted a territorial repealing ity Court, could not be before Supreme Territory, brought by on either act, section of judiciary under twenty-fifth aof stat- drawn that there was validity question ground on the or exercised under, State, or an of, authority ute . a stat- drawn in that there was validity question ground of the- United exercised under authority ute or authority drawn in not In there was question States. holding Mr. Justice State, Daniel, of an act speak- by validity passed WELL. BID LIMA De the United States. Argument for “ In order to this court said give jurisdic- for the court, 7): (p. ing of which is drawn statute, in..question, tion, validity Union, a member and a State, must public by passed to its Constitution obedience conformity body owing into the admitted Union, bodies, duly if laws. That public laws which encroach on the might as States, undertake pass conduct have to be such would or Union its granted powers, Government down put reached either by laws the States and insurrection the ordinary penal are situated and bodies acting; Territories within which these court a writ but their are not examinable measures statutes within of error. cannot pass are not States, They acts. meaning judiciary Other casescited court, just quoted opinion [re- Howard], the case of in the 5th Jones, might Scott v. ferring (cid:127) the court be adduced to show the difference taken ever . reference to its relation to the as contra- from the Territories of the United States. It seems distinguished that the control of us, these territorial governments properly to that branch of the appertains Government which creates and can them to meet its change modify views of public policy, *120 viz.,the of the United States. Congress That control certainly has not been vested in this either court, mode substance, the section of the by twenty-fifth act.” judiciary In that the territorial holding charter could not be regarded “ anas act of the court said : Congress, The charter of the Bank of enacted in all its Dubuque details and ever powers possessed to by (and which it according was in fact the organized) by of Wisconsin, legislature must be looked as the upon creature of To legislature. it we regard to do ar- urged by the of the gument plaintiff would érror, constitute it rather a bank of the United States, situated without the United and States, within the operating of Territory Wisconsin.” “ And I think in the court will find opinion the word with- out” italicized—“ without the United States.”
I believe that a careful examination of the Constitution leads conclusion, but to one that the of power over the Ter- Congress ritories is and absolute. Whether it plenary follows from the TERM, 1900.
Argument for the United States. or is conferred to hold and territory, power acquire of the which declares shall Congress clause Constitution needful have to and make all and of rules power regu-' dispose or other lations territory respecting property belonging full and it is is States,” and complete, unhampered those limitations restrictions which intended to were within States of the Union. apply only line is a of decisions There Court running Supreme back to the which early Some sustains this view. days years after the decision in case Insur- v. Loughborough Blake, ance Company Canter, came Pet. before Supreme over which Chief Court, A Justice Marshall still presided. court Territory Florida, notary composed had five sold a wrecked of cotton on jurors, salvage cargo claim and transferred the Canter, title to the purchaser. was insisted that it became a Florida acquisition of the United States over part extended, which the Constitution under the Constitution could admiralty jurisdiction It had to of the United States. courts exercised only by was in ac- court not that the territorial organized be conceded to be Constitution, judges with the requires cordance behavior. opinion for servicé during good appointed Its of careful study. logic worthy Marshall Chief Justice ceded Congress govern While unanswerable. absolute, limita- be inevitable declared was the exercise judicial power of the Constitution upon tions held be confined to the States expressly of the United 545): Although admiralty the Chief Justice saying (p. in those courts, only, can exercised jurisdiction n whichare established the third article of the pursuance Terri- does extend restriction Constitution, same the combined exercises for them, In tories. legislating Government.” a state General powers Justice has enunciated Chief The doctrine thus great in a his successors line and followed long approved *121 General. which were cited think all of Attorney I cases, of the used. Chief Justice Waite speaks Note language ” “ of dominion as the United outlying Territories v. BID De LIMA WELL. for the States. United ” “ dominion! 129, 133
101U. S.
phrase.
outlying
apt —an
?
of the
outside what Outside
body
governing
Lying
—the
“
United
States. The
dominion
States,”
United
outlying
not a
States. He
that
the United
says
“may
part
Congress
do for
under the Constitution
the Territories what
people,
of the
do for the
fullest
States,”
United States may
without
clearest
Constitutional
limitation.
expression
power
Me.
Please read
again.
Hablan.
Justice
“
do
That
for the Ter
may
Congress
Solícitos General.
Me.
ritories what the
under the Constitution
people,
there be
fuller
do for the
Can
States,
any
States.”
expres
sion
Mr. Justice Matthews
than that?
plenary power
says
“
sovereign
owners of
people
the National
over them and
Territories, have supreme power
“
their inhabitants.”
It
whether,
rests with
say
case,
shall
resident of the
given
Territory,
any
people,
in the election of its
or the
participate
officers,
its
making
laws.” 114 U. S.
44.
In other
can at
words, Congress
any
time
an act
local
to a
repeal
giving
government
Territory,
“
take the
to itself. Mr. Justice
authority
Bradley says
would be absurd to hold that the United States has
power
and no
acquire
it when
power
govern
acquired.”
136 U.
1,S.
And Mr. Justice Harlan
that “The whole
says
subject
organization
the territorial courts, etc., left
the Constitution
under this
Congress,
plenary power
over the Territories of the United States.”
Argument ior tlie United States. and Federal and over all state, national the municipal, eignty, remain in a territorial Territories, so condition.” long they And now I come limitations. Are subject there limitations on the plenary power Congress govern ? there are. If there I believe are who Territories believe any can the that the President new govern possessions and Constitution, outside of the all irrespective wholly not of nor am them.- Neither the the limitations, executive, J branches nor the Government Federal judicial legislative, act a conferred the Constitution. through can power by except is exercised the limitation Wherever placed particular power it Constitution must observed. The Constitu- the by upon formed thirteen States. tion was original people conferred it certain Government, upon pow- They provided and it in the exercise of some these ers, subjected powers It of cer-' certain limitations. the exercise prohibited expressly under and circumstances, tain any powers wholly irrespective exercised. since certain Moreover, where powers place certain limi- the States Union, were composing reserved laid In were States. and tations prohibitions claimed under Con- the exercise power case involving Was and the is, first granted? stitution, power question ? the limitations next What are is, ‘ of a clear conception important ques- difficulty increased use has been campaign tion these cases “ The Constitution follows catchwords, of political phrases. ” is use of to induce It made of these. people is one flag the Presi- is that the Government contending to believe that new avow- with the possessions, dent and dealing Congress, that the Government Constitution;. act outside edly within here, the Constitution stays claims unlimited the President Congress power leaving This claim to the new despotic respect possessions. and Con- both President and calculated designed put to a obnoxious liberty-loving people. gress position do now occupy. is one have never taken they position as understand it, I concede, Both the President and Congress Constitution, have no under except that they v. BID De LIMA WELL. the United States. in the exercise of their powers subject The Constitution limitation properly applicable.
every Wherever the flies as the symbol flag flag go together. an of this raised authority country sovereignty now under the Constitution. The flag created and existing virtue the war and treaty-mak- floats in the Philippines which we have territory. ing acquired power through *123 It waves same authority. in Porto Rico under the raised there now as the of the Republic sovereignty symbol ex- the Constitution over which rightfully acquired territory, intrusts the and disposition Congress. pressly regulation in is in in the and is force The Constitution force Philippines in Porto Rico, but not all of its those provi- provisions. Only sions on there, operate operate Congress legislating new which the intended framers of the Constitution possessions, should of the as counsel Constitution apply. Opposing speak if all of its provisions everywhere apply throughout scope it authority creates. This not government is true. The United in the States, broadest is sense, of States composed Territories, and and organized There unorganized. are certain and limitations which prohibitions clearly to the States apply only bodies were politic. not intended They to and not do apply to the Federal Government at all. There are other limitations to the which General apply Government when within the acting united under States the Constitution. There are other limita- tions which both apply States and throughout the Territo- ries, and organized There are unorganized. other limitations which both apply everywhere, within and without the United States broadest sense. So, it after is a all, question and scope application limitations. specific Because an limitation is not in inapplicable force the new it possessions, does not follow that applicable prohibitions limitations can or would be ignored.
To the repeat, States of America—which Chief Jus- tice Marshall, Dixon v. The United said States, is “the true name of that which grand corporation the American people have formed, the charter Iwill, trust, remain in full long force and vigor” of which the body politic, States alone —is
Argument for the United States. same Chief Jus are constituent parts, only, integral “ tice said of the Ameri members Ellzey, being Hepburn can and this exercises entity Confederacy,” sovereignty governing “ pur Great is over American Republic,” Empire,” States the broadest and, sense, composed Territories— if does this, he not mean then over hy territory unorganized, are that too. The Territories not but integral parts possessions of this grand unit, corporation.” governing composed dominion the Territo exercises over possesses to the restrictions and limitations ries, subject only applicable the Constitution. All the do of. Constitution provisions not and cannot have uniform both within operation and Territories whose status relation political gov are so It is true that body different. erning widely every part the national domain is within the of the Con jurisdiction Cjf all not follow that stitution, but does every part subject to some one or more of Each of its part subject provisions. not to all of all are them. but them, subject parts not being possessions, The Territories, parts, gov- within of those lim- purpose the’scope body, erning *124 which were to designed restrictions preserve itations the In’ the States Union. leg- the of composing rights protect is not to limited for Territories jealously Congress islating of but exercises combined national powers powers, guarded Government. and of a state General you referred is the Dixon case Hablan. Where Mr.. Justice to? In It was a 1 Brockenbrough,
Mr. Solicitor General. the circuit. decided on case
- lim acts outside those when- thus Congress The safeguard and which.I to refer, to which I am now regard going itations in to Marshall refers is what Chief Justice Gib applicable, that, 9 Wheaton, where, objection v. Ogden, meeting bons for Government, counsel taken by according position clause by Congress given authorizing power despotic : 197) he said commerce several (p. among to regulate their wisdom and discretion Congress, identity “The their which constituents influence pos- people, 155 De LIMA BIDWELL. Argument for the States. instances—as that, in as in other elections are, this, at many
sess restraints on war—the sole which declaring example, are the to them from its abuse. relied secure They have in all often rep- must on which rely solely restraints people resentative governments. exercis- to which Congress are limitations apply
But there those limitations the territorial Obviously ing grant. irre^ of a are the exercise Congress special power, laid upon do such as those exercised, apply, where spective place ex attainder, bill post any Congress forbidding pass any as Madison These, or confer title law, nobility. facto said No. to the first prin- Federalist, contrary of the social slavery oper- ciples prohibition compact. are not the these ates But by express provision everywhere. mind that this is limitations. It is be borne always Government framed other es- things, among people, A tablish and to Gov- secure the justice blessings liberty. ernment thus dedicated Is on based funda- justice liberty mental and at all times must show for fun- principles, respect damental I Mr. This, take what rights. it, Justice Bradley meant when he said in the Mormon Church 136 S. 44—U. Case, “ Doubtless for the would be Congress, Territories, legislating to those fundamental subject limitations in favor personal which are formulated its amend- rights Constitution and ments but these ; limitations rather would exist inference and the general Constitution from which spirit derives all its than and direct powers, by any applica- express tion of its provisions.”
And it was to this that Mr. obviously Harlan, Justice speak for the court, referred in ing McAllister v. United States. U. S. 188, when he said : “ How far the exercise of that power govern [the is restrained the essential principles Territories] which our and which are embodied rests, system government *125 in the need not to Constitution, we stop inquire.”
Mr. Justice take Brown. Can Congress property private for use in the ? Territories public without compensation Mr. Solicitor I to Well, court have suppose will General. 156 1900.
Argument for the United States. define the fundamental limitations. I do not think I can. The them, court has not stated categorically The court yet. has itself with contented there are fundamental saying principles embodied in the Constitution. court should prefer define the
Mr. Justice You Brown. do not limitations and care to state them ? yourself [Laughter.] I to have the court prefer define the Mr. Solicitor General. rather than do limitations to so think it try I would myself. in me to act as in this presumptuous pioneer matter. I am content to follow the court.
The Government has never and does not asserted, believe, has the of a in Congress Porto Rico. The despot fundamental limitations in favor which are personal rights in the formulated Constitution referred amendments, Mr. Justice stand Bradley, way sug everything which shocks the moral sense. could gested Congress pass ex or an declare any law, attainder, title post grant any facto trial or for the treason in nobility, provide punishment marked out in the than that Constitution, other all way direct these prohibited applicable provisions. being things do ten not limit direct If the first Amendments application new for our this as a possessions put legislating Congress —I within do the States which case—neither they operate possible the Union. As this Mr. Justice court, speaking compose “ S. Cruikshank, U. 552: The said Waite, first Amendment the Constitution prohibits to assemble petition right people abridging This, for a like the the Government redress grievances.” at the same time, Amendments other adopted proposed to limit the of the state not intended governments powers own but to National to their citizens, respect operate alone.” Government rests life, Protection primarily liberty, property Kemmler, as Chief in In re Justice Fuller said States,” “The 448. Constitution makes no protect- S. provision U. the different States their liberties; the citizens religious ing laws,” the state constitutions and said Mr. Justice this is left for the court Permoli v. First Catron, Municipal- speaking 3 How. ity, *126 1$7 v. BIDWELL.
De LIMA the for States. bill forbids the of at- States pass any Constitution or law the law, ex obligation tainder, impairing post facto Fourteenth title of and the or to nobility, contracts, grant “ no State shall any person Amendment deprive provides nor law, without due deny life, process liberty, property the its within jurisdiction equal protection any person ” of these limitations the people outside the range laws; laws, They constitution supreme. the State, through can fit; see they State they define treason can against cab restrict and of freedom press; they limit the speech for can arms; quartering provide bearing troops. have an established reli- Could a State
Mr. Harlan. Justice gion? read what court I Mr. have already Solicitor General. Amendment. First to that in connection with said regard case, P&rtnoli came before court That question makes said that the Constitution provision the court in their religious the citizens of respective protecting liberties. What the word in does “liberty”
Mr. Justice Harlan. Fourteenth Amendment mean? That is a broad which the question
Mr. Solicitor. General. court has answered. I stand the decision of yet fully the court and if is overruled point, specific I must general expression, yield. What would to an act of Con- you say
Mr. Justice Harlan. forbade trade between Porto Kico all gress absolutely ? do what and the States If could not that, Congress Federal Constitution that stand in the would provision ?way I if it saw fit, think could,
Mr. Solicitor General. all trade. prohibit And could in that prohibit people
Mr. Justice Harlan. at here to the States ? all, country coming amI to think that along disposed goes Mr. General. Solicitor discuss that will, with other. I however, phase me ex- But to these here, later. let say question respect Argument for the United States.
treme illustrations of what be done under a might claimed that I understand this court has power, taken the repeatedly po sition is not certain although thing expressly prohibited, still if arbitrary destructive tyrannical, fundamental and, therefore, fundamental rights, opposed principles, court will find a way protect it. In the people against of this where court, has been opinions power Congress up *127 held, has been so carefully guarded language used, leave the court free to in case should protect people, Congress in a exercise such destructive of power way fundamental rights. in the of Thus, case Knowlton v. in which Moore, the court up held the feature of the lan graded tax, legacy following is used, S. The which it (178 U. guage 109): grave consequences is asserted must arise in the future if the a right levy pro tax in involves its ultimate gressive recognized, aspect mere assertion that free and is a representative government and that the abuses of failure, foreshadowed grossest power unless the a function. If courts a case usurp purely legislative an and should arise where exaction ever arbitrary confiscatory of a other form bearing guise progressive imposed, to consider whether the it will be time of tax, judicial enough inherent and a funda can afford by remedy applying power of the for the even individual, mental protection principles to do Constitution there be no authority express though so.” constitution and laws, of the State, through people or otherwise infamous crimes, for the trial of
can capital provide indictment, and a information and without without jury, upon can do with the trial have done and so; away and they they done and can do so; and have cases, they civil they by jury I not enumerate. other which need many things the States to of the of words, In other change right people as to conform them to so laws their system procedure and or the views of administration, exigencies developing changed And I ask the been sustained. life, now, social has ques- their to indictment if the Constitutional guarantees relating tion, do not tie the and trial a hands jury jury petit grand when State, inhabitants Territory organizing why v. WELL. De LIMA BID for the States. United and Con- of the President the hands be held to tie should in our and life order and protecting property preserving gress ? new possessions into as the went soon contention is a strange order President Congress preserve
effect the power no There were juries, ceased. grand new possessions crime processes no machinery punishing petit juries, contention and- law; according of the yet, Anglo-Saxon Constitution if all the limitations side, apply other crime could of its authority, scope everywhere throughout Constitution gave no other be punished way. by treaty imposed territory acquire did it, and governing duty disposing demanding impossi leave the National Government helpless of the newly acquired bilities. Until the people progress after of courts juries will the organization permit or the be held our these must inoperative, guarantees system, life and the order, peace protection preservation under the civil be abandoned. The situa government property of In re Ross, tion resembles that discussed the U. S. case *128 which I commend to who contend that counsel, opposing of of the United everywhere throughout scope authority under the all limitations In that Constitution, apply. a of murder a consular court act conviction case, by Japan, under an act of and therefore under of authority ing Congress, information, a Constitution, without jury, upon sus said, tained. Mr. Justice Field these respecting guarantees an indictment and trial in criminal cases And, by jury (p. 464): their enforcement abroad in numerous where it besides, places, be would consuls invested with have judi highly important cial would be from the impossibility authority, impracticable a obtaining competent grand requirement petit jury. and to an offender a would, such a accuse ma body try an abandonment of all eases, cause prosecution.” jority I discussed consid- general pass Having question, on eration of Porto Rican act. This act provides law on after a certain date the duties by Dingley imposed levied and shall be col- into the United States goods brought OCTOBER'TERM, Argument for the States. United lected on all articles into Porto Rico from other imported ports than of the United three : those with exceptions
A of 5 cents a dutjr is levied on This is in coffee. pound order to the coffee industries there protect cheap, against coffee of South America. scientific, be ad- artistic works are to
Spanish literary, mitted free for ten This duty out years. carry pro- vision the treaty.
American the same publications placed footing upon Spanish.
Now, course, these duties are not involved this case, as a measure to for Porto un- temporary revenue Rico provide til a of local taxation could be framed system by provisional local created the act—it was government government by —a all Porto that, into Rico from the provided upon goods coming United States into the United States from Porto coming Rico, cent of the duties levied duty equivalent per law should be In on addition, Dingley imposed. goods into the United States from Porto Rico which had brought manufactured in Porto the internal revenue tax im- Rico, laws of the States on similar articles manu- posed should be and on articles manufactured ; factured here imposed into Porto the internal Rico, in the United States and taken there revenue tax which similar might imposed goods This internal tax is to be should be collected. revenue levied and collected under regulations imposition stamps of Internal the Commissioner Revenue. promulgated by tax The revenues collected this are to be for the applied use and benefit of Porto Rico. It was also Ias have provided, soon as the Porto indicated, just legislative assembly created should Rico, act, put system operation and the taxation sufficient to meet the local President needs, all tariff should make of that duties on fact, proclamation into Porto the United States and Rico.from goods coming *129 from Porto Rico into United States should cease. coming further, in no event shall And it that duties be provided on March, after the 1st merchandise collected da.y v. BID LIMA WELL. De Argument ior tlie United States. Eico into Porto from the United States articles
and going Eico. Porto into coming on and the brief, page succeeding pages, have in my I had Foraker, Senator charge from a whft speech quoted in which he stated with clearness the Senate, in the the bill led to the enactment of which Eico in Porto situation In this he : provisions. says measure, epitomizes that a civil govern- found investigation committee upon in Porto and found Eico, be at once established ment should for its less support would that this require government found that an ad- also than about $3,000,000 annually. They the mu- million support ditional dollars would required of not an island, aggregate making governments nicipal than $4,000,000.” less of all kinds found the total valuation property
They for taxation purposes would not exceed the island situated bur- was already found that this $100,000,000. property They on record, evidenced dened with a debt, by mortgages private with an accu- to the amount of about $26,000,000 principal, at which rates, interest, mulation of several extravagant years’ $30,000,000. swelled the sum probably that no further found tax- committee system property or ever had and that it island, been, ation was force two to inau- would at least year, probably years, require that, returns from and inasmuch as it, one and secure gurate it would with such a had no familiarity system, people at least for a time. it, to enforce difficult, probably, found that the revenues of the The committee also public excise such as raised a burdensome island, were except had vocations, tax on incomes business always chiefly on received from duties system imports exports—a were, familiar. therefore people found The committee further system already col- were then that revenues constantly being operation, could far the Government went, so lected, which, at once depend. law, found our internal revenue
The committee further VOL. clxxxii —11
162
Argument for the United States. in that would and if island, prove ruinous to oppressive applied and interests. many people
To collect our internal revenue taxes—far heavier heavy than these and ever vocations would be Spain imposed products —on of to invite violations law so to innumerable as make prosecu- tions and to almost alienate and impossible, certainly destroy and of that the will for the good friendship United people States. in view of those and
Now, considerations, order to to find some of Porto Rico both from way exempt people direct taxation their taxation as im is property —such State and of the United posed every Territory organized States—and1also of an onerous burdens immediate ap of our laws, internal revenue that this plication temporary sys tem of from the island and the into taxing exports imports the island was framed and operation. put Manifestly, by act, the Porto Rican because of these passage but also of other fiscal because temporary provisions, provisions did brief, to which I call attention in not intend my Congress treat the island as of the United part States, recognize awith existence under thereof, political but as a possession limits, outside of the the United States, leg sovereignty, made The inhabitants are citizens of Porto treated. islatively United States. such entitled Rico, protection and as with a revenue A civil provided, sys temporary government from that of the United distinct States. tem and quite separate both on into the act, coming The duties goods provided by into and Porto from Porto Rico Rico United States coming used for the and government from the United “shall States, is of therefore, taxation, Porto Rico.” benefit of purely derived from local nature. It cannot be said the revenues these duties were be used to the debts provide pay States.” the common defence and welfare United are not duties laid under general These grant 8 section of contained first clause power taxing but under and make article all need- I, dispose ful other rules regulations respecting prop- fact that States. The the limita- erty belonging 163 v. BID WELL.
De LIMA for the United States. of article I, indeed clause section tion in the first to taxes which that clause generally, only apply provisions for the common defence the debts are levied provide pay what of the United' welfare supported general on the in his work Constitution, Miller page Mr. Justice says Gibbonsv. Marshall Ogden, and what Chief Justice says *131 reference to the case, 199. In that taxing power, Wheaton, authorized to is lay Chief Justice Marshall Congress says: the common the debts, collect etc., provide taxes, pay This does United States. welfare of the defence and general for the tax of the States sup- not interfere with the power the exercise nor is of their own governments; port power States an exercise any portion power to the United States.” granted and because correct, if the the other side is
But contention of Porto into the United the duties on from Bico exports are in this are collected applied country, although proceeds if Bican because of for the benefit Porto governments, and these duties must be collection here this clause applies, uniform then answer is States, my throughout uni- are uniform the United States, they throughout being collected State into which formly ports every goods from Porto Bico. may brought has local Now, determined that this rev- temporary enue measure is for the and I Bico, welfare of Porto submit that that determination there is unless is some other conclusive, limitation or which other prohibition only prevents. pro- vision is that which that no suggested applicable provides tax or shall be laid on from articles State.” duty exported any which could as articles ex- goods possibly regarded from State are the are into ported any imported goods Porto Bico from the these are United States. But goods State. into Porto Bico. are exports They imports- A laid on at the time is laid duty exports duty goods upon and because of that fact. When abroad, they shipped goods aré received at the cease to be destination, port exports and become and a tax then laid them because imports, upon their is not a but a tax importation upon exports, duty upon imports.
Argument for the United States. the tax shall be a tax Whether considered as upon exports as a duty upon depend application imports upon revenue In this is collected. case the revenue all to be applied for the benefit of Porto Rico. The revenue collected Porto on Rico what the other side claim are from the United exports to the use of Porto and I Rico, fact applied say these two sufficient, to determine that testing views, are to be into Porto Rico. goods regarded imports Mr. Justice Harlan. As far as is con- question it would be the if cerned, not, would it or col- same, duties lected Porto Rican were into the products paid Treasury of the United States and remained here ? I think it a material makes difference
Mr. Solicitor General. toas whether the revenue is to be United States or paid Porto Rico.
. Mr. Justice Harlan. As to the question power? Mr. Solicitor As to the authority levy par- General. ticular duty. I do not I want Harlan. it' does not.
Mr. Justice say get views. your *132 in I contend a is, that sense, Mr. Solicitor General. local revenue is not a case where Congress measure. exercises to the Federal taxation to raise revenue the debts pay power for the welfare and common defence, provide general it is a measure Constitution, under section provid- Porto under the which au- Rico, local revenue for provision ing thorizes all needful rules for Congress pass regulations now Porto Rico. And what I am is whether there inquiring other other of the Constitution, limitation, any provision which prevents. it be would compe- Under power,
Mr. Justice Brewer. to be for an on tent act duty paid Congress pass requiring all from the other into for Mexico, States New goods shipped Mexico ? New support New Mexico as I placed, might Mr. Solicitor General. take if the exact it, fit, saw Congress Congress, position think of Porto Rico. I I would have to so contend. logically if demanded, Alaska circumstances the exact placed might, WELL. v. BID
De LIMA States. Argument for United has full over power Pico. I believe Congress of Porto position which to certain provisions I should however, say, them, subject, of certain enjoyment citizens of United protect the vested privileges whether Now, rights rights. I confess I what would you suggest, follow prevent citizenship could sell I believe Congress to state. am not able at once remains that so I think long Alaska if it saw fit. it is in the Constitution, out marked under the plenary power be taken into shall that territory whether for Congress say become State, part-of and so indissolubly the Union as a would welfare be better or whether States, general at the same making, with the territory, subserved by parting' citizenship, all due time, rights safeguarding provision the United States to citizens all rights property belonging there. residing of that
Mr. Justice Brewer. Does not the effect argument come to that the clause Constitution this, uniformity to the States ? of duties, etc., solely respect applies Mr. Solicitor General. clause I does, insist, uniformity unless has seen fit to apply solely Congress provide otherwise.
Mr.. Justice Brewer. Unless has extended the Congress ? Yes, unless has Congress enlarged Mr. Solicitor General. mean within the mean- the boundaries the United States —I laws. ing taxing it can restrict? If enlarges,
Mr. Justice Brewer. unless vested in- Certainly, Mr. Solicitor rights Gemeral. tervene to prevent.
Mr. Justice would You have the say "White. right to, of Arizona' and New Mexico, your judgment dispose pro- it made vided of cit- protect rights provision and so ?on izenship,
Mr. Solicitor General. Yes. *133 how But would those citizen- rights
Mr. Justice White. come into unless Arizona, ship being require protection, for has become a citi- instance, United States and part has resulted? zenship
Argument for tlie States. United has entire over authority Congress General. Mr. Solicitor not and it naturalize the matter of naturalization, may and it acts, but law collectively, by special applying uniformly, in the Indian Indians who lived has done so. It has naturalized Indian has not regarded Territory, Territory although in' our excise as a of the United States part imposition taxes. naturalization collective might Many instances if And so I that we have conferred citizenship, given. say, to the United then,
why, belongs disposing the Union, but has not become States, an part inseparable doubtless the would provide treaty-making power all prop- safeguarding protection personal in such erty rights territory. flowing citizenship ' I believe that can the Government dispose Philippines can can sell if it deems best do so. acquire, power other from which the I do not the position exchange. occupy an in- made the side cannot that the Philippines cession escape, under States, of the United incorporated inseparably tegral part fixed Con- and with unalterably the Constitution, rights are but belong- I believe possession territory stitution. — we can with whenever to the United States—which part ing or our welfare demands that their interests becomes apparent a separation. of Wood that within the decision be further suggested Porto Eico into 8 Wallace, 123, Parham, goods shipped
ruff from the because States, not from the States are exports I take it, The commerce, not to a country. shipped foreign since the between Porto Eico and the United passage com domestic commerce, the Porto Eican act is foreign under the countries merce. It is commerce between passing which is regulated of the United commerce sovereignty commerce under regulate by Congress, possibly nations —I States or with say either the several foreign among mind the in the case Stoutenburgh having opinion possibly, the court held that ac in which 129 U. S. Hennick, of Columbia tax local of the District authorities tion of the commerce was in violation a commercial traveler ing as I have to make all need- said, under the clause—or power, *134 WELL. BID De LIMA States. for the United or other prop- rules and ful respecting regulations the United States. to erty belonging insular these to posses- I submit that authority regulate with both commerce, their includes to authority sions regulate is Commerce countries and with United States. foreign body. a of governing a always subject regulation rightful limitations certain It is true that the Constitution places States. to commerce regulate Congress commerce to regulate While Congress given express power and the several States with the nations, among foreign no shall be given the Indian it is tribe's, preference provided one to the or revenue ports of commerce by any regulation this Porto Bican over those of another. But obviously State over those of one State to the act no gives preference ports Porto into alike. Goods going another. All States are treated or what State from Bico a certain no matter there, pay duty from into the United coming port shipped; goods what certain no matter to Porto Bico here, port pay duty It is declares that State true Constitution shipped. all the the citizens each State are entitled to privileges immunities of citizens That is what I several States. Mr. referred to a moment ago answering question Justice Brewer with reference to but I fail to see Arizona; n what of a citizen of. State can be any way rights infringed the Porto Bican act. All citizens are treated alike. not treated alike. Suppose Me. Justice Hablan. this act had to the commerce com- Suppose given preference this of one over State ing country ports ports another. view, Under what clause the Constitution your would forbid that ? Congress doing I clause have read. very
Me. Solicitoe General. You call that of com- regulation Me. Hablan. Justice do ? merce, you
Mr. I most But do, emphatically. Solicitor General. Moreover, clause of revenue.” also “regulation applies Porto Bico privilege granted people immunity for the of Palis legislation, treaty infringed that their civil itself rights polit- provided expressly TERM, 1900. Argument for the United States.
ical status should be determined by Congress; Congress declined to has make them citizens of the re- United their status citizens of Porto entitled to the Rico, stricting of the-United States. has such, As framed protection a measure the insular raise revenues peculiarly adapted the easiest thus bur- them of way, avoiding imposition upon *135 dens which become would if our internal revenue intolerable taxes were extended to them.'
Before the of the Constitution—and I will di- adoption now rect to that is the mind myself, possibly, of Mr. something Justice Harlan —the States had du- severally lay and ties on and and imposts exercised imports exports, it. The Constitution forbade the further exercise of this power without the consent of and unless the net Congress proceeds and all duties so should be laid for of imposts use of applied of United the clause Treasury fol- reading lows: “ No State without the consent of shall, the Congress, lay any on or duties or what except be imposts imports exports, may for its necessary laws; and the absolutely executing inspection and net of all duties laid State on im- produce imposts by any or be for the use of the shall of exports Treasury ports all States; United such laws shall be to the revision subject and control of the Congress.” this Now, should seeming prohibition say seeming— —I an of prohibition, equivalent implied grant authority or to a a in a State, authority recognition existing State, or or duties on lay imposts imports exports, providing Congress consent, shall the condition that the net produce such duties shall be for the use of the United Treasury a States. And fact recognition needs a and of both State States might promoted by duties on the or of a State. The con- special imports exports dition thus for in the case of a recognized provided State in this has, instance, for particular legislated by Congress, both state and which Federal in the case' possesses jurisdiction I Rico. this connection, Porto might say respecting of duties a State on with the imports consent of levying v. BID WELL. LIMA
De States. Argument for United case limitation same grant applies that the Congress, coun- history and that duties, legislative of tonnage consent to a many has great given that Congress shows try on on or either duties, levied tonnage State measures where Mar- Chief Justice duties, to tonnage With reference imports. much A on is as tonnage Wheaton, duty 202): said shall (9 reason which or on exports; tax, imports duty also. extends to this those taxes induced the prohibition of Con- with the consent a State, This tax may imposed gress.” from 1790 acts,
I have here a list thirty passed acts of States the assent of given harbor improvements duties on tonnage levying imports other local purposes. which re- be insisted that the constitutional provision uniform to be all and excises duties, throughout imposts, quires a fundamental rule taxation down ap- lays taxation, mode that no meet plicable everywhere; special of a can be framed needs particular territory, by Congress, but that all duties and excises must be laid uniformly through- *136 out all the over sovereignty extends. With to I to that there this, respect beg say for was a reason duties and to be uniform excises good requiring the States and that reason is stated Union, throughout n clearly the in in the court v. But Knowlton Moore. opinion there is neither nor in reason the same taxes to justice requiring be wherever the flies. of our The collection internal imposed flag revenue taxes is and in Porto Rico impossible impracticable and the were framed to meet conditions Philippines.. They would be at here; ruinous there. We are not engaged in taxes in Porto Rico for the benefit present collecting United States. The taxes collected for the bene- are used only fit of Porto Rico. Of course Porto Rico the benefit receives of revenues to a certain for the General general degree, Government is there with its at the agencies supported general and it if could stand fair, would Porto Rico expense, to in it, make her bear her fair share of the national burdens return for the benefits she after But, all, receives. entire
Argument for the United States. matter left and the uniform Congress, in imposition Porto Eico of the national of taxation would not system re lieve the island from the necessity further ex- responding actions, should them deem in order to Congress necessary meet the local expenses island. government Congress over úse Porto possesses Eico, of Mr. Justice language Gray Shively entire dominion and Bowlby, sover national and and eignty, Federal state.” What municipal, could be good served, then, purpose in. by attempting apply Porto Eico the that Federal taxes shall uniform provision the States. all throughout Federal right taxes require to be uniform the States. This a secures throughout uniform contribution from the a States for uniform benefit. Only national taxes are raised in the States the Federal authority. The States raise their own state, and taxes. county, municipal these to suit They regulate themselves. has no Congress say about them. But in Porto Eico has to raise Congress power revenues, national all insular needed everything merely It is not on as I government. necessary, carry the.local that in taxes for understand.it, raising Territory Congress between the to which the should taxes are purposes distinguish to be and taxes for national and levy specific purposes applied other for is this true taxes other before a purposes. Especially territorial has been has established government organized (cid:127) of local taxation. operation system put sources and must combine the revenue necessarily apply the circumstances proceeds require. between necessity doing prevents any just comparison' the revenue established system by Congress Territory force Federal States. purely purposes the territorial with their courts and Eespecting governments, Mr. Justice for the said in laws, Nelson, court, Ben- speaking ner v. Porter, How. 242: They legislative governments, and their courts courts, the exercise of *137 legislative Congress, its the of the Territo- powers organization government the of both ries, the Federal and state au- combining powers thorities. There is but one of or of laws system government, v. BIDWELL.
De LIMA 171 tlie States. United to consti- as neither subject their limits, -within operating and Federal to state jurisdiction.” tutional respect provisions it is Rico, in Porto of taxation the matter With regard Harlan, which Mr. Justice the question put pertinent quite of case McAllister v. United court, for the put speaking of over 190, power S.U. States, respecting courts of a Territory: ex- ‘the general right sovereignty’ “Has under Congress, matters States as to all the United in the Government isting control, including making to its exclusive committed the Territories needful rules respecting regulations Territories over less judges United any power ex- law, own .might if unrestricted its State, organic than ”? over creation ercise its own judges under has this, In other words, Congress, paraphrase ” Government existing sovereignty right general to its exclusive committed States to all matters United as needful rules and control, regulations including making less United States, the Territories of the respecting revenue than a if State, territorial its raising unrestrained by exercise law, own revenue within organic might raising borders ?
In the of counsel on the other reference argument side, made to the ordinance of that the “the term showing United States” includes to the United territory belonging States. Counsel called attention to the that in fact the treaty between this and Great Britain the country description United included the vast outside the limits of expanse the thirteen them the Colonies, claimed successorsof into the and insisted royal West, power, stretching great that that constituted the United States. I think careful read- of the ordinance of and the of the release ing history the Con- Colonies, States under composed ordi- federation, their claims covered nance of that a was drawn 1787 shows distinction conclusively between the States- under the Confederation and the them which of the Ohio. northwest territory belonging lay The ordinance itself that it is ordinance “for the an gov- says
Argument for the United States. eminent of the of the United States northwest of the territory Ohio River.” This had been ceded certain of the territory York and Virginia, it, New others —who claimed Colonies— the United because States, the Colonies claimed that properly unless succeeded in the war with Great Britain the title would amount to It was won blood and being nothing. treasure of and all, therefore should and the all, Col- belong onies conceded be a and therefore turned fact, over their title and claim to the United States. And then this ordinance for the government was and it it territory passed, says is an ordinance for the of the United government States northwest Ohio River. With to members of the it respect assembly general provides “
that no shall be he person unless shall have been a eligible citizen one the United States Did three that mean years.” a citizen of the Northwest because Territory? not, Evidently it on to a and be resident in goes provide, un- district, less he shall have resided district three In other years.” words, citizen one of the United States was if he eligible while a not a citizen of district, resided one person have in the district three United States must resided years be eligible. “ For civil the fundamental and reli- extending principles form the basis whereon these gious liberty, republics, constitutions, erected,” their laws and was and provided should be declared that certain articles considered as articles States (that is, between compact” original States under the “and the and'States Confederation) people the said and forever remain unless unalterable, territory, common Here is a distinct that the North- consent.” recognition of the United States. The ordi- west Territory part nance forms a between the United States under the compact Confederation and the States to be formed people Northwest Territory.
In the fourth article it is that the waters provided navigable into the shall com- Lawrence, St. etc., leading Mississippi mon well and forever “as to the inhabitants of free, highways, the said citizens Territory v. WELL. BID LIMA
De Argument for the United States. into admitted the Con- States that other
those federacy.” to these elaborate arguments, I sat
As have listened counsel, simple provisions plain whereby ignoring induce refinement seek, reasoning, Constitution, *139 and the the President court to take from away to na- according to newly govern acquired power has been from the exercised, ture and needs—a which power which then, the nation by founders of the Republic, days “ assumed, Declaration, among pow- to use words to which the station and earth, equal ers separate but entitled I cannot it,” of nature and of God laws nature’s Mar- Chief Justice recall great impressive language he delivered which at shall, the close the remarkable opinion case of Gibbons Ogden: as minds, Powerful and postulates, ingenious taking, of the Union, the Government to powers expressly granted narrowest into the construction, are to be contracted possi- by ble . . . a course of but compass, may, by well-digested refined and founded on these metaphysical reasoning, premises,- of our Constitution ait, leave explain away country, to look structure, indeed, at, for magnificent unfit totally use. so They may perplex entangle understanding, to obscure which were before principles, thought quite plain, mind induce doubts if the were where, to its own pursue would be course, none perceived.” We new have the territories. We for are them, responsible to their to the world. We responsible ourselves, to people, must them a we not them a provide government. May give needs ? we not in their government adopted May govern- them out the ing solemn carry stipulations treaty through which we them over ? The of duty acquired sovereignty path we not walk it? Does the Constitution plain. May pre- vent ? Is or a the Constitution a block, stumbling trap, caught in which of our we excite friends and derision shall the pity of our ? so. The is no foes I refuse to believe Constitution mere It created nation to which was declaration denials. of Inde- intrusted the full asserted the Declaration 1900. Opinion Court. conclude contract war, levy alliances, pendence peace, —“to establish, commerce, all other which do acts things do.” When conferred independent right it took care not to action. still power, remains the cripple most instrument ever struck off perfect at a time the- given brain and under man, purpose we armed every and able to emergency, condition. cope every Mr. Justice Brown delivered the of the court. opinion This case raises the whether single question territory acquired the United States cession remains foreign power ” foreign within the country tariff laws. meaning Did the in question raised demurrer jurisdiction volve of the Circuit Court a Federal jurisdiction court, we should be that the defendant was obliged say in a position make this since the case was removed claim, the Federal court his It is own upon petition. infringment maxim of cannot ancient the law that consent confer *140 to a has the re that, hold where jurisdiction, party procured moval from a state court that he is cause upon ground entitled to a trial in a Federal he is to court, lawfully estopped that if court could such removal was the Federal lawful, deny court did not' take the case or the Federal jurisdiction at that the have the to issue same pass upon questions right n court would have if cause had remained there. state had, case Defendant nor loses removal, neither by gains if taken v. as no such removal had Cowley proceeds place. Railway Northern 583 Co., 569, ; Railroad 159 U. S. Pacific Mansfield Nat. v. 111 U. Mexican Railroad Swan, 379; S. Co. S. 201. Davidson, U. 157 is more than of This, substance, a matter words however, the defendant has the to show that unquestionably right court or did not state had that the jurisdiction, complaint forth to This set facts sufficient constitute cause action. understand to be the in this con- we substance defence nection. Rev. Stat. enacted that the 2931, sec. was decision
By v. BID WELL. De LIMA Opinion the Court. ” of duties and amount paid to the rate
the collector un- conclusive, be final and merchandise should upon imported and within thirty- entered protest, the owner agent less and, Treasury; Secretary therefrom days appealed final and should be of the Secretary decision that the further, after within ninety days were brought unless suit conclusive, sec. 3011, Rev. Stat. any per- By the decision of Secretary. was under such given protest son made having payment excess of back recover an action at law right bring duties so paid. when 10,1890, until June condition
The law.stood this was Act passed, Administrative an act known as Customs .the Stat. Rev. sections the above which 407, 26 Stat. c. 131, established, and new 3011, secs. were 2931, regulations repealed of the collector the decision which an was appeal given im- upon to the'rate and amount of the duties “as chargeable under if such duties were merchandise,” protest, ported paid should be final a Board of General whose decision Appraisers, as to the construction conclusive law and (sec. 14) the facts the classification of such merchandise and respecting the rate of duties classification,” thereon under such imposed unless within one of the to the Cir- thirty days parties applied cuit for Court United States a review of the questions and fact law involved such decision. It was Sec. further the decision of such court should be final, provided the court unless were of involved was opinion question of such toas a review this which court, importance require the decision affirm, reverse given power modify Circuit Court.
The effect of the Act was considered Customs Administrative court in S. Fassett, In re U. Petitioner, we held collector that a that the decision yacht was an article be reviewed a libel imported pos- might *141 filed Ad- session Customs owner, notwithstanding held that the review of the decision ministrative Act. was of the Board of for section -General Appraisers, provided fifteen of that was limited to decisions of the board as act, and the the construction of the law facts the classi- respecting OCTOBER TERM. Opinion tlie Court. ” fication of of duties merchandise and the rate im- imported thereon such it did under and that not posed classification,” for an review whether article be bring up question imported merchandise or under section not, nor, is the ascertain- fifteen, (cid:127) ment of that fact such a decision as is for. Said Mr. provided Justice “Nor can the Blatchford: court of review pass upon which had any collector not question original authority determine. The no collector has to make authority deter- any mination article which any merchan- regarding not imported dise if ; and vessel here not mer- question imported the court of chandise, review would have no jurisdiction determine matter and could not regarding question, determine the fact is in issue under very the libel District on Court, which the of the libellant rights depend.”
“Under the Customs Administrative Act, libellant, order to have thereunder, the benefit of the must proceedings concede that the vessel is is the merchandise, which imported in contention under the libel, and must very make question put of her as with an merchandise, invoice and con- entry imported sular to that effect.” It held certificate that the libel was filed. properly involved this case is not whether question sugars
were articles under tariff laws, whether, importable did from a to be domestic, coming they port alleged they were from a words, other country whether imported foreign —in were at all that word is defined in imported they Woodruff 8 Wall. We think the decision in Parham, 123, 132. if Fassett case is conclusive to the effect that, question not, whether the were such could sugars imported question not be raised before the Board of General and that Appraisers; whether were merchandise the reasons imported given in the Fassett case that a is not an vessel article, importable because merchandise was brought foreign is immaterial. In either case the article is not im- country, ported. then that section 3011 has beén
Conceding repealed, no exists under the Customs remedy Administrative does Act, it follow that action whatever will lie ? If there be an ad- *142 177 v. BID LIMA WELL.
De Opinion of the Court. to an courts look far will supply adequate
mitted wrong, law of sec- action at common the repeal If an lay remedy. in. customs cases, 2931 and tions regulating proceedings to make merchandise,) the classification is, (that turning Board of General before the for another Ap- proceeding way not did destroy the same class of cases, any right praisers than customs as to other cases; action existed have might “ be no collector shall liable and the fact that 25 section as to the classification or account or decisions on of any rulings or col- thereon, or such merchandise the duties charged on or on or account of dues, lection duties any any charges merchandise,” such other matter which importer any of General have before Board brought Appraisers, might not does restrict the of the merchandise which the owner right have not within the collector cases might against falling Customs Administrative Act. If the Govern- position ment be would col- correct, remediless; if a plaintiff lector should seize hold for duties from New goods brought Orleans, other domestic New concededly port, York, there would be method his to make such testing right n seizure. It is the owner hardly could be possible placed in this But we not position. without authority upon point.
The case of Elliott v. Swartwout, Pet. 137, an 154, was action the collector of assumpsit against New port York recover certain duties to have been upon goods alleged (cid:127) classified. It improperly was held that as the payment a mutual purely voluntary, by no action law, would mistake lie to recover them back, it would have although different if had been under paid Said Mr. Justice protest. Thomp son : is Here, then, the true distinction: when the money paid mistake to voluntarily he has agent, paid it over his he cannot be made principal, personally responsi ble but ; if, before it over, he is mis paying apprised take, required he over, liable.” pay personally If the payment money notice to the accompanied by collector that the duties are too charged and that the high, per son intends to sue to paying recover back the amount erro-
vol. olxxxii — 12
Opinion of the Court. held, it was that such action must lie unless the neously paid, can be that no action will lie maintained, broad proposition a collector to recover back an excess of duties him, paid against that recourse must be had the Government for redress.” *143 the fact case with that, respect money paid recognized the in under a mistake of collector stood the of an law, position and could be made in the liable case ordinary agent personally under were money paid protest. in made in
This decision was 1836. Apparently consequence in act was 1839 collected for of it an moneys passed requiring to be the credit of the Treasurer of the Uni duties deposited and it was made the States; Secretary ted duty to draw his warrant in case he Treasurer Treasury upon more had been collector than the law to the found money paid in court v. It was held a by Cary majority required. that this act an action of 236, 3 How. assump Curtis, precluded the collector for duties had and -received against for money sit the sole that the act of 1839 furnished him, received by in Arnson v. 109 case Murphy, said was remedy. in the time session at that the 240 : 238, being S. Congress, U. act of Febru announced, explanatory was passed decision of the act of construction legislative 1845, which,‘by 26, ary of action his claimant against right restored 1839, be made in at the writing collector, protest required to have been ex duties alleged illegally time of payment the author of the Treasury from the took Secretary acted, 5 of 1839. 349, the act Stat. conferred refund by ity in v. decided Wat as was force, Barney 1845 was act of This act until implication 449, repealed by 92 U. S. son, into the Ke carried 214, 202, c. 13 Stat. 171, 30, 1864,” June In the same case 2931 and 3011. as sections Statutes vised that the com it was decided 109 U. S. v. Arnson Murphy, to recover back the collector of action mon-law against right and rem statute, taken was away collected duties illegally which was exclusive. sections, these based upon edy given, but so far as was recognized, v. Swartwout Elliott decision was held to be classification cases) e., cases (i. customs respected Hendricks, So the statutes. superseded Schoenfeld v. BIDWELL. De LIMA Opinion of the Court. action could not be it held that an maintained 691,
U. S. or at common law under the stat- either collector, against to have exacted, duties 1892,' to recover utes, alleged merchandise, an remedy given upon through importation exclusive. Board General being Appraisers made these The-criticism to be cases applicability merchandise and with is, imported dealt only they and have no reference whatever thereon, the duties collected under color of the revenue collector, exactions made laws, never been at all. With which have re- upon goods imported if, under color of his to these the collector stands spect office, he had seized a or its other article not ship equipment, tariff laws. Had within the comprehended scope involved this case been admittedly imported, is, sugars into New York from a confessedly foreign country, brought had arisen whether Were dutiable, question belonged to the free would have fallen within the list, Customs case Act, Administrative since would have turned upon question *144 of classification.
The fact that collector have deposited money in the is no bar to a Treasury him, since judgment against Bev. Stat. sec. 989 of that, case provides a of recovery any exacted him and money into by if paid Treasury, court certifies there was for probable cause the act done, no execution shall issue but him, the amount of the against judg- ment shall be out of the paid from the proper appropriation Treasury.
We are not impressed if by argument that, plaintiffs insisted that these were not sugars imported merchandise, they should have stood their refused to upon enter rights, the goods, an action brought of to recover their replevin possession. It is true that, the seizure of prevent the sugars,'plaintiffs did enter them as merchandise; but imported admission any from derivable that‘fact their explained by protest against of exaction duties them as such. waived upon noth- They ing by course. The taking collector lost since he nothing, was of the course apprised they take. probably would. true that the Fassett 142 Case, U. S. 479, the proceeding
180 TERM. 1900.
Opinion of the Court. for which is an vessel, libel analogous by possession but it Bev. action of at common would law; appear replevin Stat. sec. 934 would such remedy here, stand way “ taken or detained since that section all any property revenue, law of officer or other under authority any person the United States shall be and shall deemed irrepleviable, be in to the orders of the law custody subject and decrees of the courts of the United States having jurisdic- thereof.” If under revenue tion the words any authority ” are to be as if read under color law construed it would could revenue seem these law,” sugars that re- made the of a even conceding subject replevin; we a choice lie, remedies, would consider merely plevin the tort and and that were at to waive plaintiffs liberty in assumpsit. proceed
We' are all of that this action was brought. opinion properly de- 2. Whether.these were duty sugar subject cargoes “a whether Porto Bico was for- solely upon question pends ” were since the at the time sugars shipped, country eign c. 30 Stat. known 24,1897, 11, 151, act of commonly tariff July that “there shall be collected levied, as the declares act, Dingley all countries” foreign articles imported paid A was defined duties therein certain foreign country specified. to be one and Mr. Mr. Chief Justice Marshall Justice Story nation, within the exclusively sovereignty foreign The Boat Eliza, of the United States. without the sovereignty 1 Adven- 1; Taber v. United 4; Ship Gall. Story, Brock. ture, this: island had
The status Porto Bico was months under some States occupation by military article second when, country, conquered between the signed Spain, Decem- peace *145 ceded to and the 11, ratified 10, 1898, 1899, ber April Spain ever the island of Porto which has since Bico, United States admin- in our has been and remained and possession, governed If these facts, us. the case and istered by depended upon solely were a which the broadly country question presented whether been ceded to delivered, had cession us, accepted, possession
De LIMA v. BID WELL. t)f
Opinion the Court. and without the island administered interference occupied a or or other was domes- Spain power, foreign by country it there could be tic would that as little hesita- seem territory, tion as there would be in this answering determining question deeded fee to a a house simple purchaser, ownership had into deed, who taxes and possession,paid accepted gone let hindrance from his without vendor. improvements ;made Government it But it is insisted that never by earnestly to admit could Porto have been the intention Bico that, into a customs union with the United while the island to certain extent domestic it a still territory, ” under the tariff until remains a Con- laws, country foreign revenue has it within the embraced general system. gress more at Ve hereafter, shall 'consider this length subject for the call to certain cases this court and attention present executive which are certain departments regulations' sup- to favor this contention. posed which an
In United States v. Wheat. was action Rice, of debt the United States a bond for brought by upon duties into in the district Castine, upon goods imported (now State) Maine, by British during temporary occupation troops in the war of held the action would 1812, was lie, though Castine was evacuated subsequently restored enemy to the United States. The court said that, occu- by military of Castine, the pation enemy acquired ena- possession him bled to exercise fullest rights that the sovereignty; of the United sovereignty and our laws suspended, could be no enforced there, or longer rightfully obligatory inhabitants; surrender the inhabitants to the British passed'under temporary allegiance government, and were bound of that laws government, Castine was to be deemed during period foreign port; there were goods duties which brought subject the Brit- ish chose to government were no correct sense impose, ; n into the States and that the evac- subsequent imported uation did not character of the enemy change trans- action, since the were not liable to American duties goods when In that case character imported. port, foreign *146 TERM, 1900. 183 Opinion the Court. to the of actual was held occu- domestic, upon depend question of the defendant determinable the and the right pation, by further, and the facts then existing, reoccupa- subsequent the tion United States ineffectual of the was change port by defendant or to vest a new in the the United right right States. to the converse somewhat was that of case, this,
A Fleming was an the collector How. action Page, against back im- at recover duties merchandise Philadelphia, upon from Mexico, Tampico, during military ported temporary of that the United It was held States. place by occupation within the was that, although Tampico military occupation it had not ceased to States, the United country, foreign the which these words are used in the acts of sense Congress. In the Mr. Chief court, Justice delivering opinion Taney “The United it is extend its true, observed': may the boundaries demand cession by conquest treaty, in order as the condition of peace, indemnify for have citizens to reimburse suffered, injuries they But this can war. for expenses government be.done or the power legislative authority, treaty-making by only conferred President not a upon by and is part While was our war. occupied the declaration of by .... and not in in an their own ; enemy’s country, were troops, enemies, and owed to inhabitants were still foreigners than more a submission obedience, nothing which is due from a allegiance, sometimes called temporary ato force which he he surrenders when enemy, conquered unable to resist.” of the case a sufficient reason disposing
This was clearly 'learned Chief Justice pro- adversely importer, another there was the case ceeded ground, put at a custom house nor no act of Tampico, establishing a collector; consequently authorizing appointment of the United States authorized law to officer there and authenticate manifest the clearance coasting grant manner directed where the law, voyage cargo ” that the another; one United States port BID De LIMA v. WELL.
Opinion the Court. one commander, collector was military appointed by him manifest could not be that a coasting granted recognized the document law, in the States as when required nor trade, the vessel is coasting engaged exempt *147 of duties. He states that this' con- from the cargo payment had the of the tariff been ad- uniformly given struction laws by Government, cited the case ministrative department to United after it been ceded the States and had Florida, the of Pensacola: That forces had taken is, military possession become a that, had, cession, Florida actually part although by in under United our States, was possession, yet, our revenue be until laws, must foreign ports regarded were And established as acts of they domestic, by Congress. that this at the time decision was sanctioned appears officer of General of the United the law Attorney States, Government. not so And, directly applicable although case before us, the decisions yet Treasury Department relation to Amelia Island, and certain after Louisiana, ports had been ceded province were both States, made the same And later grounds. after a case, custom house had been established law, Stat. at (2 New 418,) Orleans, collector at that was instructed to place regard Baton foreign ports other Rouge settlements still in the whether possession Spain, on the Iberville, Mississippi, seacoast. The in no department, instance that arewe aware since the of, establishment of the has ever Government, recog- nized a in a place newly as a domestic acquired country port, from which the trade be carried unless it coasting on, had. might been - made previously so act of Congress.”
While we see no reason to doubt the conclusion of the court port a still it is not Tampico foreign port, per- ceived the fact why that there nowas act of establish- Congress' a custom house there ing of a appointment authorizing should collector, have the collector prevented appointed by commander from military, the usual documents re- granting issued to a vessel quired in the trade. A engaged coasting collector, a though commander, appointed by military to have the of a collector under power presumed ordinary an
Opinion of the Court. act clearances to authority Congress, grant ports the United he would within have no course, though, to make a domestic of what was a port reality foreign port. not intended to that the
It. is intimate of United States cases Rice and v. are Fleming harmonious. In Page fact, consistent with each other. In the first case perfectly held that duties it was could not be collected merely upon goods into a port during brought temporary occupation domestic evacuated enemy, though enemy it; subsequently that the case, the Uni temporary latter military occupation by aof did not ted States make it a domestic foreign port port, into and that from that goods imported port un were still It would have been obviously subject duty. in the Mice case to Avhich duty might just impose upon goods have to the British commander. It would already paid duty have case to Fleming exempt equally unjust of our reason goods duty by occupation *148 temporary such to the States. Avithouta formal cession of United port port 16 How. of Harrison, case is that Cross The next to to recover back moneys paid This was an action assumpsit at the Francisco as collector San Harrison while port acting merchandise and duties imported foreign for upon tonnage date 2, 1848, between countries into California February —the and Mexico— the United States between treaty peace the the collector by when 13, 1849, appointed and November March to act of President an Congress passed (according until insisted that, Plaintiffs entered his duties. 1849,) upon and continued collector had been California such appointed, hence a and the date the territory, to be after treaty foreign the into an no duties were importation payable upon stated the theory, United States. plaintiffs proceeded been' never that duties had the dictum v. Page, Fleming ter in her held to States accrue United newly acquired for their act of until was made Congress ritories provision held to had been thát the laws and revenue collection, always at and its territories existing as to speak only time, The collector had the several acts were when passed. De LIMA v. BIDWELL.
Opinion of the Court. and du- California, appointed by military governor ties were to assessed, after treaty, according act of 1816. In States tariff that these duties were holding Mr. Justice cited with assessed, Wayne properly apparent ap- then Buchanan, proval despatch Secretary written and a circular letter issued State, the Treas- Secretary that from the Mr. Robert J. necessities of Walker, ury, holding case established California did government military exist with the but continued as cease treaty peace, until should a territorial government Congress provide defaUb “ The law of Mr. government. says Buchanan, great necessity,” “ consent of the conclusion. The is irre- justifies people inferred from fact that no civilized could sistibly community desire to when the possibly abrogate existing government, an alternative would be to themselves a state-of presented place all and reduce them to anarchy, beyond protection laws, the dominion unhappy necessity submitting These letters will be alluded to hereafter in treat- strongest.” of the action of the executive ing departments. ratifica-, The court further held in this case that after the tion of the California became treaty, of United apart States, ceded, “as there conquered, that, territory;” is. nothing differently stipulated commerce, respect bound became instantly the laws which privileged by had to raise a revenue from duties on passed imports ” tonnage; (p. had been 193) ceded as a was to conquest, as such until preserved governed to which it had sovereignty had passed it. legislated (cid:127) That was the United sovereignty under Constitution, had been of and given Congress dispose make all needful rules regulations respecting the territory *149 or other to the United States. . property belonging . . That the civil government California, as it was from a organized not did or right cease become defunct in conse- conquest, or quence from its signature treaty, ratification, . . . and that until for the Congress legislated it, duty upon into San foreign Francisco were goods imported de- legally manded and received Mr. Harrison.” lawfully TERM, 1900.
186 . Opinion of the Court. no districts had been estab- that collection To objection from the dissent views of lished California, apparent “It he added Chief Justice in Fleming Page, (p. 196): so much of the was that our covered ter- revenue laws urged divided into collection as had been ritory to and that no had been districts, out them authority given or duties goods charge prevent landing foreign .the had been within territo- them, such made landing though rial limits of the United States. To this it successfully collection districts and more entry replied, ports than localities within and at which had designated a extended of commeree in the United liberty much of its dis- so not within collection territory must trict be considered as withheld from that having It is well understood be a law of very liberty. part nations that each nation terms, its own may designate, upon within its commerce, places territory foreign ports and that elsewhere, to.introduce goods any attempt foreign within its violation of its It a jurisdiction, sovereignty. terms, such should be declared necessary by any allowance limit enactment, decree expressed being to trade with such nation.” liberty foreigners given cases of Louisiana and also cited the Florida, The court different view of facts connected an take entirely seemed had been those territories what from admission a which is taken, v. Page. quite long in Fleming opinion, un- three : That following (1) establishes propositions one, au- of California was war governor der the military of duties from scale thorized upon importations prescribe and to collect the same Francisco, to San countries foreign until the ratification himself, a collector appointed through such ratification duties That after of the treaty peace. (2) of the United States, exacted under tariff laws were legally That the civil took effect government immediately. (3) the necessities of the California continued established until government. case Congress provided territorial be seen that three involve will propositions recogni- domestic the fact that California became im- /of tion *150 187 v. BID WELL. De LIMA Opinion the Court. more of the to or, ratification treaty, speak
mediately upon, in California. as this was known soon officially as' accurately, and us does ceded to that a occupied doctrine port The a col has and acted, until character Congress lose foreign with was apparent distinctly repudiated lector appointed, who wrote opinion Justice of Chief Taney, acquiescence Justice the Chief remained and still Fleming Page, at the question does not involve directly court. The opinion in a ceded from carried port whether issue this case: goods the- duties, since to to are subject New York directly territory exacted foreign goods duties v. Harrison were upon Cross im but it is American an into San Francisco as port; imported case goods inference logical escape possible the ratification after carried from Francisco to New York San from for not be considered as imported would treaty eign country. of the executive practice with departments rulings to the status of territories, to such
respect newly acquired prior status settled acts of with a is, being Congress, single excep in line with tion, the decision of this court in strictly Cross v. Harrison, with connection supra. only possessions which the has arisen Louisiana, Florida, Texas, question California and Alaska. these We take in their order. up
Louisiana : between France and By treaty October 1, Spain, His Catholic 1800, 202, Stat. cede Majesty promised French colony province Louisiana; Republic between the United States and the French treaty Republic France ceded the 30,1803, States, to United forever and April in full the said with all its sovereignty, territory rights ap- that the inhabitants (Art. purtenances,” provision, 3,) of the ceded shall Union territory incorporated and admitted as soon States, as possible, according This of the Federal Constitution.” principles ratified 1803. Possession of the was not 21, October until 30,1803, delivered France November by Spain December In mean- France to the United 20,1803. time, authorized the Presi- 31, 1803, and October on Congress administer and to dent take possession territory, Opinion of the Court. until had further acted 2 Stat. 245. Congress subject. 1804, On another 24, act, 2 passed Stat. February within the Customs Louisiana taking Union, cer- repealing *151 tain laws duties goods from that special laying upon imported into the United States. This act take effect March We are then with 25,1804. concerned the interval only between 20, 1803, when was delivered to possession December and March States, when the act 25, of Febru- 1804, 24 took effect. ary
In a letter to President Jefferson 9,1803, Gallatin, Mr. July of the then the that all Secretarj^ Treasury, expressed opinion duties on the now at New Orleans exports, payable by Spanish should and laws, cease, all articles the of Louisiana, growth when into which, the U now nited imported duty, pay continue to the or at would same, should least such rates as pay the whole not affect the on revenue. of Gallatin, Writings vol. 1, p. with
The instructions the Treasury Department respect letter Gallatin are contained Mr: to Gov- by interval his as who was about start for Claiborne, ernor post governor date of October in which he 3,1803, the new under province, that the duties on It is understood existing imports says: the the law are now levied within which by Spanish exports, have otherwise continue until shall will Congress pro- province, Mr. issued an order 1803,- Gallatin On November 14, vided.” as collector had Trist, Mr. who designated directed to “You also be as follows: will Orleans, of New of the port the col- duties to be taxes observe, first, pleased are the same which under direction by lected precisely your were demandable Louisiana laws existing regulations at the time taking possession. under Spanish government duties for, That until otherwise same . . 10. provided . in the Missis- to be collected on the importation goods as versa, from New heretofore.” Orleans vice district, sippi a circular letter Mr. Gallatin issued 28, 1804, February On collectors of of the act of February passage notifying and that same would into effect March 25, that the go much law or of said act so laws third section impos- v. BIDWELL. LIMA
De Opinion Court. into the States of goods, duties on importations ing New Orleans, from and merchandise wares has been territories, in said repealed.” of entry port Mr. Gallatin treated show that undoubtedly These instructions the act of Feb until as a foreign Congress, Orleans port New Union, and, so it within Customs admitted 24, 1804, ruary the collector taken in favor is an far, position authority in this in mind be borne connec it should in this But case. levied by collect duties Spanish instructions to his tion, Orleans, into New iñanifestly law foreign importations taken this court inconsistent with position subsequently is said ac 189) Harrison, (p. in Cross wherein supra, tariff, war “That however, of Mr. Harrison tion California: had received as soon was abandoned military governor and ratification information exchange Washington afterwards levied in with and duties were Mexico, such had upon foreign imposed conformity *152 other the merchandise into of United imported ports States, been ceded the California the having treaty Upper After that this action had been States.” saying recognized Mr. Justice President, adds: “We think it was a Wayne correct under and all the circumstances, rightful recognition mean when we we that it was al say rightful constitutional, had not an act to extend collection though Congress passed duties to the of California.” In tonnage import' ports it is evident from deed, this case that court took an quite view different of the relations of California the Union entirely from had that which Louis taken Mr. Gallatin as to in iana his instructions to the collector of New Orleans. Florida : was ceded to the United States by Spain Florida 22, 1819, but not ratified until Oc- signed February tober 1820. 8 Stat. act 29, 252. of March 3 Stat. 3, 1821, By 637, authorized the President to take possession Floridas and extend thereto revenue laws States. of East Florida until Possession delivered nor of Florida It is true 10, West until 17. July 1821; July that certain Florida were military ports occupation the United States to the actual prior delivery possession by
Opinion of the Court. but the cession did not take effect until there Spain, had been a under the voluntary As the act complete delivery ex- treaty. the revenue laws to the Floridas was tending before the passed surrender of the to the United province there was no in- terval of time which the could Treasury Department act, provinces, immediately upon surrender, becoming subject to the act of March 3,1821.
An of Mr. Wirt, then opinion General, Au Attorney The 1821, the case of Olive Branch, Ops. Atty. 20, gust Gen. 314, 483, instructive this connection as illustrating views of the administration. After that stating possession East Florida was not delivered until mistake for 17, (á July he July 10,) held the Olive which had Branch., cargo from the cleared of St. port 14, was Augustine, July imported into from a or Philadelphia foreign port place, consequently because had not been subject duty, cit possession delivered, the case of 5 Ch. Rob. Fama, On ing adding: I into a hand, other apprehend goods imported port on Florida before un delivery, remaining port shipboard and then into the til after the United States brought delivery, into vessel, or others, in the same never by transhipment having in the customs nor nor houses, landed, been entered Spanish secured, thereon or continued all the while duties having paid to our revenue . would be laws. . . water-borne, subject Our. on into the laws duties United States goods imported impose therefore, from some case If, foreign port place. put,, an law, be, importation contemplation importation our the case is not within because at the Floridas, laws; time of the Floridas were not foreign importation ports learned took the General view places.” Attorney evidently the Floridas ceased to be a foreign country upon delivery *153 of In a Janu under treaty. subsequent letter possession 5 Mr. Wirt admits that he .748, Gen. 24,1823, ary Ops. Atty. that East had been misled belief Flor newspapers had been surrendered on 14, ida which day prior July and Branch left St. recommended the- Olive Augustine, it be sent to the seemed to involve President, case dispute with Great Britain. 191 LIMA BIDWELL.
De Opinion Court. resolution Congress On March. 1,1845, adopted joint : Texas of Texas certain conditions, upon to the annexation consenting that it was 25,1845, it until December 797, 5 Stat. In this 9 Stat. 108. interval, as a State. admitted formally issued a Treasury Secretary on 29,1845, July to collect duties the collectors all upon- circular letter-directing until States had Congress into the United from Texas imports be that Texas could no there course, question further acted. Of was.form- when she 25, until December state remained foreign no is of therefore, The circular, pertinence admitted. ally here involved. question Mexico to the : United was ceded by California
California ratifications which 2,1848, signed February by treaty made 4. July 30, 1848, were May exchanged proclamation 9 Stat. an act was 3, 1849, Stat. 922. On March passed, collection dis- one of the San Francisco within 400, including tricts, on November the collector Pres- appointed entered California had ident his duties. our mili- upon since There was therefore an tary possession August, interval of one nine months between the date of the year when 3, 1848, 13, 1849, November treaty, February his duties. collector entered upon 1848, October Mr. On then Buchanan, State, Secretary to, addressed a letter Mr. Yorhies, referred already he states ceased to that, although military government con- exist with conclusion would peace, tinue with consent until people presumed should them territorial and then provide government, a. adds: This de no will, course, exercise government facto inconsistent with Constitution provisions which is the land. States, law the For supreme can levied in on this reason duties California ar- import ticles of manufacture of the growth, produce our as no can be other of Union such duties any imposed port on the of California. Nor can new duties productions al- California such have charged foreign productions of our for the obvious duties ready ports paid entry, is within the of the United reason that California *154 192 1900.
Opinion of Court. I shall not this however, States. as the enlarge upon subject, will Ex. that Secretary Docs. Treasury perform duty.” 2d 30th vol. Sess. Cong. 1, 47. p.
Mr. then of Walker, did Treasury, Secretary perform in a circular letter of same date to the duty collectors, which he instructed the collectors as follows: All ar- First, ticles of the or manufacture of growth, produce California, therefrom at time since the any 30th of shipped last,” day May date when the ratifications were (the “are entitled exchanged), of to admission free into all the duty United ports States; articles second, all of and, or manufacture growth, produce United States are entitled to admission free of into duty as also California, are all which are from goods foreign exempt the laws of by which duty the duties Congress, goods on those laws have by collector prescribed paid United States to their introduction into California.” previous 45. He adds p. foreign goods into Cali- imported I.bid. will be fornia, duties there, if paying subject duty shipped United, States. place thence In a letter any port toWar, Mr. Colonel from mili- Secretary Mason, Marcy, of October he uses the commander, 9,1848, same tary language. cited with These letters court in Cross approval by How. 184, 16 Harrison, v. there re although question on lated duties imported goods foreign countries, is a stated, the tenor of the as virtual already indorse opinion, taken executive ment position departments. that the took an is evident administration different entirely from what had been of the law taken Mr. view Gallatin Louisiana, established a his instructions regarding practice (cid:127) from, has never since been terri departed treating ceded to the as tory occupied troops domestic and not territory. foreign being This reference California took correspondence place The decision in v. in 1848. How. 603, Fleming Page, from the list 1850, yet documents pronounced appears Mr. Johnson submitted argument case, the attention the court called was not to these in- 611,) (p. other letters and circulars were introduced structions, though BID WELL. De LIMA Opinion of tlie Court. as well 1846 and 1847, date peace
bearing Had the above cited correspondence of February it is incredible that Jus- court Chief before been laid *155 in no that the instance that department said have tice should of the the establishment government, since of, are aware we in a as a a newly acquired country place has ever recognized trade be carried coasting might from domestic port, made so act of by been Congress.” unless had previously on, Alaska ceded us Bussia was by treaty : This territory and was deliv- 539, 15 Stat. 1867, 20, possession ratified June act of No the same time. Congress extending ered us'at district collection laws to Alaska erecting the revenue A c. 273. 240, until 1868. Stat. 27, pe- July passed Alaska was for- months then before riod of thirteen elapsed within Union, the Customs by Congress mally recognized from Alaska under de- were, yet during period goods admitted free of cision Treasury, Secretary duty. Mr. then letter of Secretary McCullough, Treasury, By dated York, to the collector New 6,1868, port April of a from the he Bussian Minis- acknowledges receipt request oil ter for the free certain from Sitka San entry shipped Francisco and to New York. He states: “The re- reshipped for the oil free said was made on the entry quest ground oil from Sitka after that the was the ratification of the shipped which the of Alaska became the treaty, property of the United States. was ratified on question the 20th of collector at Francisco has June, 1867, San that the manifest of the the oil to have vessel shows reported from 6th Alaska on the 1867, shipped day July, consisted of Under shipment fifty-two packages. these Authorized to admit the circumstances you hereby of oil said free duty.” fifty-two packages This was indorsed Mr. State, Secretary positipn dated in which he said: 30, 1869, a letter Seward, January “ I the case understand the decision of the Court in Supreme 16 How. that, Harrison v. to declare Cross, 164, opinion con the addition to the United States of new upon territory by commerce attach the acts cession, quest regulating foreign VOL. olxxxii —13
Opinion of the Court. and without within such to and take effect territory ipso facto, such extension to fresh act giving legislation expressly I can no reason discrimination laws. see preexisting commerce and the in this between acts regulating foreign effect intercourse with the Indian tribes.” laws regulating As the construction upon question by showing put that sec. 2 of add we-need only legislative department, countries and Foraker act makes a distinction between foreign duties shall be Porto that the same Eico, paid by enacting upon from other than all articles into Porto Eico ports imported law to those of the which are .States, required from collected the United States articles into imported countries.” foreign
From this of this the instruc court, resume of the decisions act of tions of the above Con executive departments, of Mr. it is evident the date Gallatin’s that, gress, there a shred letter, time, authority, present *156 overruled in in v. Page, (practically didmm Fleming except in a district to and for that .ceded Grossv. Harrison,) holding for remains a any of the United purpose the possession must exist to conditions Both these produce foreign country. Possessionis not for revenue purposes. nationality change nor in v. is a held Fleming as was sufficient, Page; treaty alone a surrender of without such sufficient possession. ceding 308; Heirs v. 14 Kibbe, Pollard's v. 8 Pet. Keene McDonough, The 5 899; Fama, Ala. 882, Pet. Hallett v. 7 406; Hunt, 353, the executive thus Rob. departments, Ch. practice is entitled for more half a continued than century, great nor overturned and should not be except weight, disregarded that such construction and unless it be clear reasons, cogent S. 236, 124 U. erroneous. United Johnston, States v. other cases cited. should we
But were this as an question presented original conclusion. to the same impelled irresistibly President is Constitution, Article section II, By “ consent Senate, and with the advice and power, given by of the senators make two-thirds that treaties, pres- provided ” “ and the laws this Constitution concur; ent Art. YI, by v. BID WELL. De LIMA 195 Opinion of the Court. shall be made in States, which pursuance thereof;
of the United or which shall be made under made, the au- treaties and all shall be the law of of the United supreme thority that no distinction be observed is will made as to It land.” between laws and treaties, supremacy except question the Constitution. A controlled by both are law requires that in Congress, and, houses certain both except the assent of the President. A is cases, signature treaty specified President, made concurrence of negotiated but each of them of the Senators is the two thirds present, the- land. law of supreme Marshall 1 said Chief Justice As was Peggy, “ is the law of the land, : Where as 103, 110
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legislation.
are declared
instrument
to be the
law of the
supreme
land, and no
to either over
efficacy
the other.
superior
given
the two
When
relate
the same
the courts will
subject,
always
endeavor to construe them so as to
if
effect
both,
give
can be done without
but if the
violating
either;
language
two are
the one
inconsistent,
last
date will
the other,
control
on the sub
provided always
stipulation
To the same effect are the
To
ject
self-executing.”
Cherokee
*157
11 Wall.
bacco,
and the Head
616,
Opinion of the Court. of the Union the war and of eminent powers making making treaties that Government ; consequently possesses either The ter- territory, by acquiring by treaty.” conquest thus as if the annexa- ritory absolutely acquired acquired tion were of Texas and the case an act made, Hawaii, by of Congress.
It follows from this that of the ratification treaty Paris the island became of the United territory although States— an not in the technical sense of the word. organized territory
It true Mr. Chief Justice held in Scott Taney Sandford, 19 How. 393, the territorial clauseof the Constitution was and intended to confined, which at confined, territory time to or States, was claimed belonged their within boundaries, was as settled with Great and was not to to Britain; intended apply territory subsequently He seemed to in this construction from differ Chief acquired. Justice Marshall in Ins. the American &c. Co.v. Pet. Canter, it of Florida before became a 511, 542, who, State, speaking States, to be a it continued remarked that Territory clause Constitution. the territorial governed by of this the source But whatever be power, uninterrupted and the for a declara exercise century, repeated- by Congress the law that the tions of this have settled court, right acquire of it. That dispose involves the right govern in the Dred Scott case. In stated Justice was Chief Taney Bank v. County Yankton, the more recent case of National Waite it Mr. Chief Justice that Con U. S. was said by over the has full and legislative authority peo gress complete of the territorial and all the Territories ple departments what the do for the Territories people, governments. may do for the under the of the United Constitution that there has States.” too much Indeed, say is scarcely of Louisiana since the not a session of Territory not based that that has enacted legislation purchased, body and control Terri the assumed upon authority govern from the arises, tories. It is an necessarily authority from the territorial necessities Constitution, clause of the and from the States act case, inability *158 LIMA BIDWELL. De
Opinion of the Court. deal with territory may Under this Congress subject. it does as administer its may government by treaty; acquired terri- a local it District of Columbia; organize may that State an it admit it ás a upon equality may torial government; to citi- lands individual its it sell States; may public with other In to actual settlers. as homesteads donate them zens or may United it belongs once by treaty, when short, acquired of Congress. and is to the disposition subject under a foreign country can remain thus Territory acquired that the either theories: laws one two the tariff only upon at the as were foreign to such countries word “foreign” applies notwithstanding subsequent the statute was enacted, time under remain foreign their condition, change them laws until embraced the tariff has formally Congress ob- within the customs union The first States. theory While a to untenable. statute is speak viously presumed time of its all such enactment, embraces things persons to fall within and ceases to such subsequently scope, apply thereafter fall without its Thus, statute scope. forbidding' the sale of to minors not to in ex- minors liquors applies istence at the time the statute was enacted, but to all who.are and ceases to to such bom; as thereafter subsequently apply reach their when the So, Constitution of the United majority. declares in Art. sec. I, States the States not do cer- shall tain this declaration thirteen things, operates only upon all States, but who original such; become subsequently upon and when certain restrictions Congress places powers of a territorial such cease restrictions legislature, operate moment such admitted as a State. Territory By parity ceases the instant it becomes reasoning country foreign domestic. So, if fit to cede one of its too, newly Congress saw it had do territories acquired (even assuming right to a there could be no doubt that from the so) foreign power, of such and the day cession such delivery possession, would under become a and be reinstated as such country, foreign the tariff laws. be neces- act would Certainly Congress in such to declare case that the laws of the sary had ceased to it. apply
Opinion of the Court. that a theory remains country foreign respect tariff laws until has acted it within embracing the Customs Union, that a presupposes country be domes- *159 tic for one for purpose another. foreign It undoubt- may become for the edly necessary adequate administration of a domestic to a territory pass special the act providing proper as the machinery officers, President would have no author- under the war ity, except power, administer it himself; but no act is to make necessary it domestic if once it has ceded to the United States. We as to express opinion whether is bound Congress for appropriate money pay it. This has been much discussed writers by constitutional upon but it is not law, to consider it in this necessary case, Con- made gress prompt appropriation money stipulated This also that be treaty. theory held presupposes territory may that it be indefinitely States; treated in by may for tariff as domestic terri- every particular, except purposes, that laws be enacted and enforced ; officers of the tory may there for that that ‘United States sent insurrections purpose; carried be wars revenues on, taxes' collected, suppressed, be done which a short, everything may imposed; gov- can within its own boundaries, ernment do that the ter- yet remain a That still this state of foreign country. ritory may for a continue for but that un- years, century even, things may it still remains otherwise, til enacts a Congress foreign country. hold that this can be done as matter of To law we deem to be find no warrant for We it the Con- judicial legislation. pure inor stitution conferred this court. It is powers upon true nonaction of occasion a inconven- Congress may temporary but it does not ience follow that courts of ; are author- justice ized to remedy ordinary words. inverting meaning If an act of be a convert coun- necessary foreign into domestic at once try territory, question suggests itself, what is the character of the demanded for this legislation pur- Will an act its be appropriating money-for pose? purchase not. Will an act sufficient? Apparently appropriating collected to and from such duties for the upon imports country its be sufficient ? benefit not. Will government Apparently v. BID WELL.
De LIMA Opinion Court. for for the estab- service, postal appropriations acts making for the sta- maintenance quarantine lishment lighthouses, have that effect? "Willan buildings, for public tions, erecting local res- government, act establishing complete be commerce, duties collect adequate right ervation nor all will be suffi- these, ? None together, purpose Government since acts sound, if the contention cient, have been in connection all these passed provisions embracing that it coun- is still a and it insisted Eico, with Porto foreign tariff laws. We are unable to within try meaning at same in this territory may assumption acquiesce time both domestic. foreign to be considered : is insisted remains
A further single point c. Stat. March 21, 1900, 339,31 that an act of Congress, passed the amount of the Eico the benefit Porto 151, applying for on United States customs revenue received importations (cid:127) Porto Eico from Porto Eico since evacuation *160 1900, 1, forces, 18, 1898, January together October Spanish on collected further customs revenues any importations or that shall hereafter 1900, from Porto Eico since January a law, be collected under is recognition by Congress existing from a to collect such duties as.upon importations right fact and of the that Porto Eico a country, foreign recognition until embraced it continued to be a country Congress foreign within Customs Union. seriously questioned fact more than a recognition whether anything not that there were the Treasury subject moneys existing and that, we farther may go say appropriation Perhaps laws. and without so far as these duties were voluntarily pro- paid intended to be of the test, recognized; legality payment but it can effect as to there- have no retroactive moneys clearly to recover back had tofore under for which an action paid protest, As the action in this case was already brought brought. March the act was right eleven before days 13,1900, passed, for not be taken away recover the sued could money for Plaintiffs sue act of assumpsit Congress. subsequent and his hands, the collector has justly equitably money could to them. To by subsequent say belonging 1900. 200 McKenna, White, Shiras dissenting. Justices and them act of the this action, would be deprive right prosecute In event, should beyond power. so interpreted to make it retroactive. Kennett's Petition, 24 N. H. 139; Alter's Penn. 67 St. Norman v. Appeal, 341; 5 W. Heist, & S. Donaran v. 53 171; Pitcher, 411; Ala. Palairet's Appeal, ; Penn. State v. St. 479 Warren, Maryland, Ve are therefore of opinion at the time these duties were levied Porto Pico was not a within the country foreign of the tariff laws but a meaning of the United duties were exacted and illegally that the plaintiffs are entitled to recover them back. the Circuit judgment Cowrt the Southern District for New York reversed and the caseremanded therefore to that court im proceedings consonancewith this further
opinion. Mr. (with Justice McKenna, whom concurred Mr. Justice Shirks and Mr. Justice White,) dissenting.
Mr. Mr. are un- myself Shirks, Justice Justice White in the conclusion able to concur court, the importance an of the case our dissent. expression justifies grounds ” Settle Porto Pico is whether or domes- foreign country tic the antithesis use territory,” opinion court, it is and, settle in this But said, you controversy litigation. in what or domestic ? sense, foreign Abstractly unquali- full extent that those words fiedly imply limitedly, —to —or sense that the word is used the customs laws foreign of the United States? If the case turns abstractly, definition, the issue becomes single simple, presenting *161 at bar have difficulty, yet over arguments ranged all the and this powers court divides government, opin- ion. If at the time the duties, are of, were complained Porto Pico was much a levied, as it was be- foreign country with if fore the war it ivas as much Spain; domestic territory is, as New York now there would be no serious controversy If the case. terms former, intention of the act would If the latter, whatever its Dingley apply. words or
De LIMA BIDWELL. White, dissenting. McKenna, Shieas Justices these extremes Between it could not applied. intention, one of and that Porto Rico relations, other occupied there to duties under the hence were its subject them and products we have Indeed, act can be demonstrated. Tariff Dirigley of the and the of the court, member of a majority authority if Rico in this that even Porto case, court’s opinion organ could be legally subjected domestic were territory, products him in Downes This expressed to tariff duties. principle of the court, other though agreeing The members v. Bidwell. him with him in Downes not in the case at do bar, agree Rico, that Porto being territory assert v. Bidwell. They are inhibited tariff duties on its products and his States. Their judgment Coristitution that the assume, at rea- unite the case we bar, and, may only road which has announced is just soning opinion that such further, them reason- and, assuming together, brought it is is the best of the conclusion judicial presented support ing consideration of that address ourselves to the we establish, reasoning. The statement of the is that whether the
(1) opinion cargoes were sugar subject duty solely depends question whether Porto Rico was a at the time foreign country were and a is defined to shipped, foreign country be, following “ ‘ Chief Justice one Marshall, within the exclusively sovereignty ’ nation of a and without the of the United foreign sovereignty This States.” makes the test and a rule as sovereignty gives and exact in its sure itas is clear and in its application simple There is no it. expression. difficulty applying Difficulty comes with to limit it. difference attempts between our and one not ours would seem to be of not country substance, words to words to needing difference, explain defying confound it, not having consequence carrying, one but all court law, laws. The does so ? far, go why Is there weakness in the or do its logic consequences repel? of the court ifas the test is argument certainly proceeds are used to universal—illustrations make it unmistakable. Under the effect of the of cession and our government if Porto Rico, said, question broadly presented *162 202 Í900. McKenna, White, dissenting.
Justices Shibas whether it was a or domestic foreign country there territory,” be would as little hesitation in “as answering question would in there of a house deeded determining ownership in fee to a after he had into simple purchaser, gone possession, taxes and made or paid without let hindrance, improvements, from his vendor.” And we would have as little hesitation all of the and concomitants of applying owner- consequences But we do care not on issue an ship. illustration, al- join though may We submit that the suggest wrong principles. administration of a more has government complexity—must consider more of a things real management piece —than But estate. even the condi- real estate conveyance all of the tional, incidents of not immediately, ownership apply- However, we need not dwell on insufficient ing. analogies. There are better ones. The of our exam- has history country of what ples acquisition foreign territory examples — relation such bears to the United authorities, territory States— as what wise executive, was in states- legislative judicial, as well as was in with- constitutional, what legal manship, our laws such extending, territory; holding finding 'and authorities way opinion these examples to answer or overrule them. court distinguish attempts 4 Wheat. 246, v. reviewed. Rice, States In that United States, of the United was case, Castine, port temporary the war of 1812, and it was British during occupation within to be our country declared meaning foreign said Mr. laws; as the court Justice much, customs Story, ceded if had been a Castine foreign had and the previously goods imported In not a cession to another words, there.” other country, the armed forces of another coun- the accidental occupation in the State of Maine made a foreign port territory. try and the had the sanction of names conclusion great authority domin- of this court. permanent Temporary sovereignty, made the test. was ion, seemingly also reviewed. The casein- v. How. Fleming Page, duties levied goods Philadelphia upon volved legality awas tern- Mexico, port Tampico. Tampico imported De LIMA BIDWELL. White, dissenting. McKenna, Shirks
Justices exact con States forces—the occupied by porarily in one of Bice made case, port dition which, held nevertheless territory. Tampico of our Union English *163 of our laws. the revenue within meaning to be country foreign and the sovereignty words, military other the occupation In in was the Rice case, determined rejected whichattended it, the between is There antagonism in the case. Fleming apparent it. bar observe And strangely in case at and the court the cases, ” of the converse (to quote' that which is somewhat enough, is Bice held sufficient case in the at of the the court case bar) de and other case, the for grounds Fleming judgment to be dicta. cision are declared and we cases, the to
An reconcile made, however, attempt the stated can reconciled, think grounds they upon can in Harmony the case at the court in the bar. by opinion between, the in Fleming them that which not be established by dicta of the Rice and as case, case the converse by rejecting to the in the Flem all other unnecessary grounds judgment the case. we.will consideration of However, ing proceed latter case. the court, Chief sub- the Justice
Delivering opinion Taney said the boundaries of our could not stantially country or diminished the advance or retreat of and enlarged by armies, based his besides and the of the case the on opinion judgment an absence of act of house at custom Congress establishing and and, the of a collector, Tampico, authorizing appointment n there was no officer the United author- consequently, ized law clearance and authenticate the by grant coasting manifest of the law, the manner directed where cargo, by is from and one United States another,” voyage port was ex- manifest necessity coasting legal permit further said : asserted. He pressly “ This construction of the revenue has been laws uniformly administrative by department government given has come before it. And it indeed, case that has, every to have been cases where there appears stronger ground given For a domestic shipment.as port. regarding place had been ceded forces States, after Florida McKenna, White, dissenting. Shibas and Justices of the United States had taken Pensacola, was possession decided Treasury Department goods imported Pensacola before an act of was it into erecting passed a collection district, of a col- authorizing appointment were liable That lector, is that Florida had, duty. although by cession, become a actually part States, United in our under our revenue must be possession, laws, its yet, ports until regarded were established as domestic, foreign act of and it that this Congress; decisionwas sanctioned appears at the time General of United Attorney States, law officer And not so government. although directly to the case applicable before decisions of the Treas- us, yet ury relation Amelia Department Island, certain ports after Louisiana, had been ceded to province were both made the same inAnd grounds. latter case, after a house had been at established law custom *164 New at Orleans, the collector that was instructed re- to place Baton and other gard settlements still foreign ports Kouge in the whether on of the Iberville, possession Spain, Mississippi, in no instance the seacoast. that we are department since the establishment of the aware of has ever government, a a as á domestic newly recognized place acquired country which the trade from be carried unless on, port, coasting might it act of had made so Congress.” previously case at bar this and disregards opinion reasoning “ While we see it, the conclusion from and no reason to says: doubt the conclusion of the court v. (in that Fleming Page) was a it is of still not port Tampico foreign port, perceived there of the fact that was act a why Congress establishing and custom house there a col- authorizing appointment lector should the collector have prevented appointed by documents commander from the usual military granting required be issuedto the vessel trade.” Such engaged coasting it was a commander said, military presumed power, course, “of he would have no have,” but, make a of what a But domestic reality foreign port.” why port ? did did it remain a Castine not remain domestic foreign port need not on We, however, dwell any longer port. point v. BIDWELL. De LIMA McKenna, dissenting. White, Shieas Justices test dominion of this court, latest utterances for, under is under the dominion of United States. Cuba down. breaks S. that it is a Case, U. foreign in the Neely We held country. of too is summarily Fleming Page think disposed
We shown that it case at and we have bar, majority case. Both cases to the Castine recognized is not antagonistic At the instrumentalities Castine conditions. inevitable not been at had divested; had been custom laws Tampico court: The depart- and hence invested, language the establish- since of, in no instance we are aware ment, in a newly ever place ment of the has government, recognized which coasting as domestic port, acquired country made it had been on, carried unless previously trade might so act of Congress.” v. Page that the which
We submit Fleming principle is still a was based proper principle judicial application. it not not Does make provident, haphazard, ignor- government or ill circumstances ? Does good producing ing accidentally it leave to executive and the legislative departments it to them ? Did not stand as a pertains guide so action, the executive—a warrant far action affect might ? what is far as Indeed, concern^-so .greater private rights action affect It we sub- should, interests % great might public as a mit, be is wise con- accepted precedent. practice; siderate of what must different government regard, executive, functions legislative judicial department's their should then be discarded Why independence. If as dicktm ? decision constancy judicial necessary the relations and individuals, not regulate rights property *165 it decision the more when influence constancy necessary may the action of a nation ? If the has influenced other depart- the must look to the ments of judicial light, government It not, that should burn should like the exhala- steadily. light tions of a shine mislead. marsh, on Harrison, 164, How. is relied es The case Cross that all cite of that case is it, curiosity parties pecially. finds it convenient and and court even adapt- this variously TERM, 1900. McKenna, White, dissenting. Shibas Justices the of the wise maxim It therefore challenges application ive. “ Marshall, Chief Justice general expressions expressed in to be taken connection are with the case every opinion used.” And those which ascertain expressions certainly must of the court we see what court, was before the meaning its if that, opinion by and, there confusion interpret it resolve itself into language, satisfactory meaning. to sustain the It is cited proposition immediately upon it the cession becomes a of. the United States, part “ bound and instantly laws which privileged by to raise has a revenue from duties on and ton- passed imports This is the nage.” the case. It is at- strongest expression to made its one—the It tempted decided. controlling point neither was decided nor it the point was controlling expres- sion. was immediately qualification accompanied by “ as there is in re- differently nothing stipulated treaty to commerce.” The effect spect qualification opinion does not case and we at- notice, shall explicitly present to show with was what tempt meaning expression used, what decided. was on case involved duties into Cali- legality imports 1848,
fornia the 3d and the 13th between of No- February, time 1849. The was divided vember, plaintiffs case “into two the court “to said, each of which portions,” ” that different rules of law attached; further, supposed the claim amounts of various were money covered at 3d of intervals between the and the 1848, paid February, 13th first of those dates wás November, 1849.” The that of States and' between the United Mexico, peace the latter when had been Mr. who Collier, person regularly collector at that entered appointed port, upon performance duties his office. the whole of During period that there existed no alleged plaintiffs legal authority to receive or collect im- whatever any duty accruing goods countries.” ported foreign the contention and to it the court held
Meeting replying fully, that the duties were levied and collected legally whole during the 3d of until time period some February, —from *166 v. BIDWELL.
De LIMA McKenna, dissenting. and Shieas White, Justices tariff instituted Governor under war fall following In the Walker other words, under tariff.. after Mason; under war tariff. cession, Speaking after and before some were said: (duties) paid-until the court They tariff, which had tariff, rate of the war at the of 1848, in the fall time the direction before, by year established early been of the action And States.” speaking of the United President it it, which sanctioned was the law and Mason, of Governor : further said fully principle appli- not have
“He comprehended may he felt case, such a do in to what he rightly cable might in the ab- determined, He and acted accordingly. rightly, to maintain existing government. of all instruction, sence to be and was been as a had ceded pre- conquest, territory to which it until the as such sovereignty served governed was it. That sovereignty had had legislated passed which had Constitution, under the power States, needful and make all dispose been Congress given other territory rules regulations respecting prop- with the to the United also power erty belonging such Union, into this admit new States limitations in the section which this power given. expressed Colonel Mason was the executive, government, of a in the lawful exercise had its over origin right belligerent It had been instituted war territory. conquered during the President of United States. command when the ceded as a con- was the was territory government not-cease, course, it did as a matter nec- quest, of the restoration of The President essary peace. consequence it of- have dissolved by withdrawing army navy might did not do ficers who administered but he so. could it, end to but that was not done. The infer- it, have an put right both, is that it meant to be con- ence the inaction of was it tinued until had No presumption legislatively changed. be made. "Whatever have been 'of a intention can contrary must be that the con- the causes presumed delay, delay And the true more with the government. sistent policy until as it was continued met so, people n McKenna, White, dissenting. Shirks Justices convention form state which was government, subsequently under its to admit by Congress into recognized new States *167 the Union.” And further to the contention that replying there was neither “ nor law the collection
treaty it permitting duties, having been shown that the ratification of the made California a of the United States, and part it so as soon as became became to territory which acts were force subject to commerce with regulate foreign the United after had those ceased which had been instituted its regulation as a right.” belligerent “ An did important is, when the laws inquiry cease which had been instituted for the of the aas bel- regulation territory did how ligerent right,” cease ? The in- answer is they ceased when the they President withdrew them and stant — he because withdrew them. The laws did in- Congress the cession. There an stantly apply was interval of time, which did not and if be there can such in- during apply, is to of what duration terval, who it shall be? Who can judge im- department how political government, other would be. It not for is practicable any ruling judiciary it. It involves circumstances question judiciary can no account of or take estimate. is essentially political function.
We have Cross Harrison because it quoted largely made court pivot case, opinion present it will recur to it we But should now said again. some be accounted for and expressions may understood the state of precedent opinion.
It is matter of that the some surprise only explicit pro- vision of the Constitution United States regard not embraced within the of a State is ex- territory jurisdiction in the : The shall pressed following have provision of and make all needful rules and power dispose regulations or other of the United territory States.” respecting property What was meant what its relation it, was to other provi- sions of the Constitution, was the of discussion. subject Gou- veneur who wrote the Morris, declared provision, subsequently v. BIDWELL. LIMA
De McKenna, White, dissenting. Shibas and Justices to confer it intended govern that was acquisitions and allow them voice in our coun territory provinces n that it was not however, He more admitted, cils.” expressed In his avert mind in order to opposition. certainly pointedly In contemplated government after-acquired- territory. de however, Scott v. 19 How. provision Sandford, intended to to be and was confined, clared confined, time which at that States. belonged “ It for a known and was special provision particular territory, and to meet a more.” This present emergency, nothing conclusion was to be claimed established by history “as which the article times, well as the careful terms framed.” We will not to reconcile conflict between stop him who wrote the and the who court it. provision interpreted The conflict was but an incident evolution opinion. *168 And there other of conflicts, were or rather diversities view, or caused the of the Constitution. That silence encouraged by instrument contained no for new provision territory. acquiring was derived from the power of and war of powers making and be making peacé, might or accomplished by by conquest There treaty. was a however, the question, effect of an ac It is certain quisition. that Mr. Jefferson doubted the power new into the incorporating Union an territory without amend ment to the and Constitution, the debates in exhibit Congress the diverse views held men public on the which by relation such would'bear the territory United States, application of the laws to and the over acquired under the territory Constitution. We shall not quote stop the debates. That will be done in a and the case, subsequent conclusion which demonstrate It is nec expressed. essary us to observe that distinctions between existed always which territory or might (whether acquired purchase and that which conquest) was within the limits acknowledged of the States, also that which might acquired the establishment of a line. These distinctions were disputed conspicuous circuit, Mr. at Johnson, Justice opinion in the case of American Insurance 1 Pet. Canter, Company 511. In that case the-relation of Florida to the United States
VOL. clxxxii —11 TERM, 1900. White, McKenna, Shibas and dissenting.
Justices to be and of that relation considered, was learned necessary said: Justice “ it is obvious there is a material distinction between the under consideration now which is territory acquired from within aborigines, (whether by purchase conquest,) limits of the United as also States, that which acknowledged establishment line. toAs both disputed acquired there can be no that the these, of the State question sovereignty within lies, imme- attach, to all the laws diately producing complete subjection and institutions of the local two un- governments, general, less modified now to be considered by treaty. question relates to territories previously subject acknowledged of another such as Florida to jurisdiction sovereign; crown of And on this we hme the most Spain. explicit subject that the is, our public proof understanding of functionaries and laws the United States do not extend to government mere cession.” The are ours. act italics territory by such All and utterances declare same history past way. those utterances and decisive
And how important were not the utterances of inatten- They controversy! present therefore discarded. were to be tion and They ignorance, whose illustrated them. of men actions They utterances men borrow the (to were the utterances of thought Benton) whose the Constitution genius whose' sacrifices made possible, time it be said that it. Shall conceived and wrote farther understand them'—better the better we us them separates *169 than ? understood themselves to this court and came
American Insurance Co. v. Canter what he said. Mr. Webster. was .We' argued by quote He more than those of an advocate. expressed His views were demanded duty if not different, them elsewhere when a higher, ” “ Florida ? he is consideration and What reflection, sincerity. can it be? “It of States. How asked. is part reach States How is it ? Do the of the United laws represented ? And, Florida Not unless respond- by particular provision.” the Justice the court decided through Chief ing argument, v.
De LIMA BID WELL. McKenna, White, Shiras and dissenting. Justice0 the Marshall the of United as de- States, judicial power did not Constitution, clared the extend to and the Florida, bales of title to one hundred and cotton was held to .fifty-six of court, under the order a which consisted of a a sale pass act of and five established an the jurors, notary governor and council Florida. the the
From Mr. opinions Jus- light language previous receives Harrison, tice Cross explanation. Wayne, defined war, with boundaries Mexico, following treaty made the reclaimed States,” territory, of the United In other California, included a part States. it can be called California words, (if such) acquisition was in and hence learned boundaries, recognition justice not called it a United States. But Mark part uniformly. this But ratification Califor- sentence: after treaty, of the United nia became ceded part conquered That marked a distinction his there can territory.” language of no be no but was to observe. doubt, consequence did need enforced it. In case either the action of principle was the president potent thing. 2. The line relied judicial precedents opinion of the court case at bar ends with Cross v. Harrison, the executive practice rulings departments are considered. are said .to be in government They accordance with the ascribed to Cross v. ruling Harrison, with but single If there is one the rule exception. legal exception gone. is not a case where an can exception it is one prove rule; where the exception rule. The was destroys Lou- exception isiana. Between December 20, when de- possession livered to the United March 25,1804, when act February became Louisiana effective, was treated as a under the foreign country laws; customs the court in “it just announced the.opinion inconsistent says manifestly with taken this court in position Cross v. subsequently wherein Harrison, it is said the action of Mr. Harrison in ‘ That California: war tariff, however, was abandoned soon had received from military governor informa- Washington tion of the and ratification of the exchange Mexico, *170 TERM, 3.900.
Justices-McKenna, White, and Shirks dissenting. duties were afterwards with' such and "as conformity levied had merchandise into imposed Congress upon foreign imported the other of the United California ports States,'Upper having ceded been This last to the United States. was done with the assent of executive of the United States or without interference to it. from the any Indeed, letter prevent from the then we cannot doubt that Secretary Treasury, the action of the of California was military governor recog- nized as allowable and Polk and his cabinet.’ lawful Mr. After and that, this action saying recognized by -having Mr." think it Justice adds: ‘We was President, Wayne right- ful and correct under all and when circumstancesj recognition we it we mean that was say constitutional, rightful although had not an act to extend the collection of ton- passed ’” and duties to the of California. nage import ports If the laws of. was the rec Congress instantly applied, why ? could President ognition necessary They gain legal from such did not have without efficacy recognition under the it, on cession their supposition they applied so obvious a have oc own force. would Surely consequence court Cross and we cannot Harrison, curred to the v. believe that the court used its If the carelessly uselessly. language and the President were assent recognition not-necessary, why them Í so confuse the statement of a dwell upon Why simple cast doubt expression principle simple application —and — it ? case, therefore, by unnecessary upon qualifications not inconsistent with the Louisiana. For a ruling regard after the-cession of President Jeffer time, Louisiana, period it under the son treated custom laws, foreign and no duties were levied one products, disputed of it. If the instance -not the as .in was same Cross v. legality im was the same. There was an Harrison, principle mediate the cession either California Louisi change upon In under ana. duties were levied a time the war California, under tariff, afterwards the act the latter Congress; it was said: last -was This done either with the assent executive or without interference it.” And further this, was said, prevent recognized BID WELL. LIMA
De ’ McKenna, dissenting. Shibas White Justices We Mr. Polk and cabinet.” and lawful his allowable *171 ? Did not ask was the inadvertent language disposed again, and of its it with full consciousness the court use meaning in as to the the court confusion Was principles necessity? or which them without seeing together jumbled applied act of force of the between the Congress a distinction making it President efficacy? itself and the action of the giving “ lawful as allowable and of its necessity recognized being ” were in- not. Rights Mr. Polk and his ? Surely cabinet of the war tariff both volved which the legality depended upon intended to be before was and after and that cession, legality automatic effect was was An sustained. passed upon and not at bar. case the act as it is givén given Congress The act execution was the President —not simple applied by of it, but as it And effect. it was this that the giving legal “ court said was a under all and correct rightful recognition circumstances.” because “it was “Rightful,” constitutional, had not act although an Congress extend the collec- passed tion of duties to the' tonnage import California.” ports In other act words, an was not to extend necessary the collection of duties; the of the was suffi- power President cient, and of that the court doubt. Speaking left.no the duties which were collected under the war tariff after the “ it cession, was observed, after the ratification of the treaty, California became part or a con- ceded, Our quered territory. here is to whether or not be, inquiry the cession gave to the any right have the plaintiffs duties restored to which them, have between the rati- may paid fication, and the exchange notification of treaty fact our government of California. military governor It was not received him until two months after the ratifica- and not tion, then or instructions even remote intima- any tion from the President that the civil and military government which had been instituted was war discontinued. during that time, whether an Up.to such intimation had or had not been duties had given, been collected under the war tariff, with the strictly instructions which had been conformity received from "Washington.” TERM, 1900. McKenna, dissenting. Shuras and
Justices White to make this Comment would seem be unnecessary passage im- clear. If the act of cession, Congress applied by applied could not be for notice. time mediately. taking delayed by it would its oWn force all other Besides, displace provisions, and would need for the creation operation rights or intimations, President instructions rights, give near or that the civil remote, military government, had discontinued.” But instituted war, been during we need not comment further. use the We language the court its conclusion : summarizing from Our conclusion what has said is that civil it was from California, government- right organized become not cease or defunct consequence conquest, .did We.think its ratification. signature without violation it was a ceded continued over conquest, *172 that the United and until States, Constitution laws of the' im- for the duties it upon foreign goods Congress legislated and demanded into Francisco were lawfully San legally ported who re- the collector Harrison,- port, received Mr. from to Wash- his instructions according ceived appointment, from Governor Mason.” ington, well the and as as review statehient, analysis
This explicit to sustain the leaves no made, have first ground the laws v. Harrison held that tariff that Cross conclusion in California without were immediately operative States of the President’s discretion them to the exercise putting regard concede the But for sake force. argument w;e may purely must have been, decision conception, The contrary. The the with Mexico. court on treaty based provisions instead of But treaty Spain, so. providing said did ceded into as territory incorporating declares status of with Mexico, expressly treaty to dif- is be determined This the ceded by Congress. territory a removes Cross v. as factor in the treaties Harrison ference in bar, at case interpretation, supposing judgment be are we reviewing, opinion correct.. “ On of the court March 1, 1845, 3. Con- says: opinion Th.e to the a resolution annexation consenting adopted joint gress v. LIMA BIDWELL. De McKenna, dissenting. Shiras White
Justices but it Stat. was conditions, 191, certain not of Texas upon admitted that it was as a 1845, formally until December 25, In this and on interval, 29,1845, July 9 Stat. State. a circular letter issued directing the Treasury Secretary all from Texas into duties to collect imports collectors upon course, had further acted. Of until the United States Congress state Texas remained foreign there could be no question admitted. The until when she. formally December in- here is of question circular, therefore, pertinence her admission as after We think otherwise. Even volved.” of the United the laws it was extend State deemed necessary as Florida was, to her. 9 Stat. 1. She was an example, Oregon as to what believed tó necessary, like, the automatic rule of Alaska examples. simple did not occur action the custom laws revenue seemingly as even nor to a new anybody; territory incorporated formed State we have territory. Nor, seen, foreign did such seem to be sustainable when Chief theory Justice announced in Taney Fleming Page contrary conclusion. 4. But the court independent precedent is “irre- says same conclusion.” sistibly impelled argument based mainly invested treaty-making power President Senate. A made is said law of the land—as supreme efficaciousas an act of Con- and if to and gress ; inconsistent with an act of subsequent Con- it. This must be gress, repeals and also that one of granted, incidents of a is the ordinary cession of -treaty territory,” and that thus acquired acquired absolutely *173 as if the annexation were as in the made, case Texas and an Hawaii, act of But to us of tell Congress.” sources of the to treaty-making define extent of power that us little to the solution of power helps very present-problem. The occurs, What has the question ? treaty-making power-done Is the with inconsistent treaty with the Spain act, Dingley was it intended work of that act ? That act when repeal intended passed undoubtedly apply products Porto Kico, we it will not and, be contended deter- suppose, whether has rendered the act treaty mining inoperative, ' McKenna,
Justices dissenting. Shiras and White terms of the are not to be looked at ? treaty Assuredly cannot have an automatic treaty force to its terms. contrary That it cannot is, that the contended, automatic force of the is than the treaty force of greater itself.
This court said,
Mr. Justice
speaking by
Brown, Holden v.
The statement not a fiscal being be as accepted, may system as other'matters of administration? not a important May new burdens taxation, of taxation change suddenly imposed, ? consideration worthy case at bar has not The discussed the opinion treaty. the cession of Porto takes it for Rico was abso- granted that it is not a and the conclusion within- lute, foreign country, revenue is deduced from laws, that. But meaning treaty, depends interpretation necessarily over ceded called for. as- territory power Congress somewhat absolute terms—it serted involves opinion of it.” This so, would govern dispose being right seem to be certain that the would not fore- treaty-making stall with the cession of the destruc- accept tion of the fiscal and industrial We country. policies hesitate to so must occur should reasons which pronounce of the clearest every one, except upon compulsion expres- sion. court further thus opinion says territory acquired can remain a laws under the tariff (by treaty) foreign country ’ on one of'two theories : either that the word ap- ‘foreign time, to such countries as were at the the statute plies foreign *174 v. BID LIMA WELL. De dissenting. McKenna, Shibas Justices White or condition, their enacted, change notwithstanding any until the tariff laws remain under they foreign union has the customs embraced them within formally as untenable. The be- States.” Both theories first are rejected “ from the time while statute is cause, speak presumed or as subse- its it embraces all such enactment, things persons But what constitutes the fall its within scope.” scope quently of a or its be letter statute —its inevitably, may spirit regarded ? In letter other shall words, interpreting applying or ? of its enactment executed defeated There be purpose can be but one nor can answer these confidence in questions, used answer be lessened the court. analogies
The law it is contem- minors, said, against selling liquors all minors—those and those which plates come existing may into afterwards. but the being true, the law Yery purpose is that. The same with territories use another illustration (to bound as States when come into the opinion) being But Union. these illustrations assume referred to was into the United incorporated by an ever-recurring our fallacy, misleading judgment. Let us, look at however, under the argument as- wrong sumption incorporation. The the Constitution provisions for the admission of new States contemplate consequences territories to be contemplate bound as ceasing such statehood— bound as States. In becoming other those words, provisions the future, and regard have their fulfilled, not purpose defeated, territories States. But a becoming tariff law does contem- additions to plate subtractions from It itself. be said to may be certain regards conditions, and be occasional.. may depend- ent whether them, be enacted for revenue or for and revenue. protection Its entire be or be plan may impaired destroyed by change part. revenues of govern- ment even may lessened, taken ; the indus- away by change trial of the country policy We destroyed change. repelled by argument leads such consequences, whether our own regarding pountry made foreign country ” “ domestic.” If domestic as to what comes from it is it, ” domestic as to what to it, and custom laws as well goes .its McKenna, White, dissenting.
Justices Shibas *175 as our custom and laws be cast into its confusion, business may and affairs there is of before action. deranged possibility
As we have to set the said, word already antithesis foreign to the word' domestic Their does proves nothing. opposition not the is express controversy. narrower. It controversy is whether a tariff law particular, That, indeed, applies. may be the that all laws Or consequence principle apply. that customs laws of reason the Con- by apply provision which stitution and duties, excises be uni- requires imposts form the United and throughout the treaty-making cannot of that prevent That power application provision. is but counsel and is asserted very simple, principle applied, It it, as counsel fraught grave consequences. apply it out of world shuts takes this within country up great to make war and It binds and itself. peace. cripples power and, if we contem- It take the fruits victory, may may away take it means of disaster, may away plate possibility are, that. All those necessary powers, mitigating great limited to make necessity argument, consequence “ uniform States.” or throughout excise some impost much a is as constitutional power treaty-making is a It attribute supreme or judicial powers. as the legislative in its less determined exercise than often but sovereignty, be less on may others—more contingency, op- dependent or war—command or be war follow tional. It may precede of its exercise cam kind or direction war. The commanded by There can be no verbal or marked. not be always predicted none What- were it, and, attempted. limitations wisely, upon have be might yield ever restraints should put material of life or death —not only prosperity, restraints greater contin- are extreme course, These, but national existence. be re- are necessary are not impossible, gencies, no account of which take when limitations are urged garded no limitations. are do that there We not mean to say them. Besides, counsel which those urge. certainly They dif- case. The is answered contention counsel Canter and its ces- ference between military occupation If ceded noted. treaty,” at the peace treaty sion LIMA BIDWELL. De McKenna, White, dissenting. Shiras and Justices ceded ter- court and the said, confirmed, tíie acquisition either to which it is annexed, becomes of the nation ritory part as its or such on the terms cession stipulated of this ? master What is the new impose.” significance may defeated often would like useless seem language; purpose laws and, drop if the- Constitution conqueror, if our the abstract and conqueror, supposing country on cession and laws territory. immediately apply Constitution to a be, or The terms received would granted wé nor Neithfer certain and extent, important predetermined. in the new situa- nation would have choice conquered stand no accommodation to would tion—could make exigency, bound in a Whatever interests, helpless fatality. might be the condition whatever permanent, temporary might *176 on the ter- us, fitness of the ceded the effect on or territory, all would become with a the United States ritory part It is true to counsel shrink somewhat implies. say ” from the of their or if shrink contention, be.too consequences an that it can be carried the'nation- strong expression, deny alization of uncivilized tribes. Whether that limitation can be we are not There called logically justified say. may.be upon test the civilized and those between ready uncivilized, who are and those self-government not, who capable available or could be or enforced judiciary, applied the what of civilization could civil and judiciary. Upon degree under the Constitution be awarded courts? political rights and how difficulties, question suggests essentially whole matter is difficul- not Nor can those legislative, judicial. ties be out under put contemplation, assumption which we no other declare will have conse- principles may than to affect duties We need quence upon cargo sugar. dwell on not, this of the From our however, discussion. part construction of the of the of the powers government treaty with of the nationalization of tribes Spain danger savage cannot arise. in our
These views the chief answer, arguments judgment, but to make a and to justify opinion, complete reply different conclusion we should consider and interpret treaty TERM, 1900. G-bay, dissenting. Mr. Justice "We not do so with now. has will, however, Spain. m, v. Bidwell, done Downes and it is concurring opinion not the statements necessary anticipate reasoning that opinion.
We at outset that it could be said demonstrated that Porto Rico a relation to the United States occupied between that of and of being domes- foreign country absolutely being tic and because of that relation its territory absolutely, products to the duties were act. subject imposed by Dingley And, we we believe that, and the concluding, say, one opinion we to, referred have made that demonstration made it from ; the Constitution itself, immediate and continued practice under Constitution, judicial authority And that demonstration does more than Spain. declare the of the duties which were levied legality sugars in error. It vindicates the plaintiff national government and international weakness. It exhibits the Constitution as a and vital authorities,-with charter of limitations great indeed, limitations as serve and assist with such government, enforced, enable the which, it; though fully yet destroy what, it was intended to have—(cid:127)“ an sta- States have— equal and to do earth,” all Acts and tion Powers among do.” And con- right Things Independent the fullest fruits of able to secure do, their fidently performance. under the All Con- harmony powers government, placed citizen and liberties of ; every stitution rights put secured— no hazard of the nation loss impairment; secured in its enabled to move with station, also great strength *177 the other nations of the effect earth to dignity among as it undertake to such as it such purpose may destiny called. affirmed. the Circuit Court should judgment Mr. Justice Gray, dissenting.
I am from the in this dissent case. compelled judgment to me irreconcilable with the unanimous opinion appears this court in 9 How. with the Fleming Page, opin- ions of the case, Justices majority day decided, of Downes v. Bidwell.