*1 TERM, 1900. ' Syllabus. Mr. Justice Brown delivered the of the court. opinion This ease is controlled the ease Dooley United States, No. 501, decided. So far as the duties were just exacted upon the ratification goods imported prior treaty April were 1899, they exacted. So far as were properly imposed after that upon date importations December prior 5,1899, is entitled to recover them plaintiff back. the Court judgment Claims is reversed therefore and the case remanded to that court proceed- for fv/rther not inconsistent ings with this opinion.

DOWNES v. BID WELL. THE THE ERROR TO CIRCUIT COURT OF UNITED STATES FOR THE DISTRICT

SOUTHERN OF NEW YORK. Argued January 8, 9, 10,11, 1901. No. Decided May 1901.1 Brown, By announcing judgment Mr. Justice conclusion the court. jurisdiction, regardless amount, The Circuit Courts have of actions paid protest against a customs for collector of duties exacted and under imported. alleged merchandise have been pro- The island of Porto Rico is not a States within duties, imposts, the Constitution which declares that vision of throughout excises shall uniform United States.” announcing judgment case, 1 In the conclusion and the court in this opinion. delivered an Mr. Justice Mr. Justice Brown White deliv opinion concurring also concurred in Mr. ered a Justice Gray Mr.- also and Mr. Justice McKenna. Justice delivered a Shiras Justice, Harlan, concurring opinion. The Chief Mr. Justice Mr. Jus Brewer, Justice Peckham Thus it is tice Mr. dissented. seen that opinion majority in which a of the court there is no concurred. Under have, Brown, I after consultation with Mr. thése circumstances Justice judgment, sustaining made headnotes of each of announced who justices placed justice opinions, and each names of the before who in it. concurred v. BID WELL.

Syllabus. prohibitions of between such There is a Constitution' clear distinction irrespective all, to act at very goas root of throughout operative only place, as are and such time or States. among the several *2 by interpretation, put leg- the executive and longA continued and uniform upon in the departments government, a clause Constitution islative of the judicial interpretation department, unless such b.y should be the followed spirit. manifestly letter or contrary be to its By White, with whom Mr. Shibas Mr. Jus- Mr. Jdstice Justice concurred. tice McKenna Constitution, government was born of the and all The of the United expressly powers may be either enjoys or exercise must derived which it then, by any implication Ever when an act of or that instrument. by department Constitution, the not warranted the challenged, is because by authority determining existence of the is to be ascertained whether express power by Constitution, either in the terms has been conferred the express authority by implication, or to be from the conferred lawful drawn legitimately inheres the or deduced an which nature of the as attribute powers government of the given, from the character and which flows es- words, confined to tablished the In other whilst its con- Constitution. supreme orbit, of the is stitutional the United States within sphere. its lawful Every government being function derived from of the thus the Constitu- tion, everywhere it instrument is follows that that and at all po- times provisions applicable. tential in so far as its are power given by it is a Hence is the wherever Constitution and there is imposed authority, operates a the limitation on such restriction subject every confines the within action on its constitutional limits. Consequently impossible it is to conceivethat where conditions are brought provision any particular about to which applies of the Constitution its may controlling any be frustrated influence the action of or all of the departments government. departments, Those when discharging, power, within limits of their constitutional the duties which rest on them, may subjects of course deal with the to committed them such a way as to pro- cause the matter dealt with to come under control of may visions previously applica- of the Constitutions which not have been just stated, ble. But this does presuppose not conflictwith the doctrine or may applicable that the may Constitution at the election of agency government. undoubtedly Congress Constitution right has conferred on to cre- municipal ate such organizations as it deem best for all the territo- incorporated ries of the not, United States whether have been to give respects governments degree inhabitants as the local such representation may public deprive as conducive to the well-being, just representative government such so, if it is considered do change governments and to such local at discretion. Congress subject governing the territories is Constitution, As it TERM, 1900. Syllabus. applicable all the results that limitations of Constitution power necessarily its authority limit exercising this subject. every provision of the Constitution It follows also controlling therein. To applicable is to the territories is also justify departure principle a criticism elementary a from this Sand/ord, 19 How. Taney opinion of in Scott v. Mr. Chief Justice inay entertained of the correct- is be the unwarranted. Whatever view interpreted opinion case, in so far as ness of the court in that slavery decided particular provision concerning of the Constitution territories, way this in no af- so in force in the construed was applicable principle announced, that fects the which that decision (cid:127) provisions operative. Constitution were instance, provision territories, every Tn when the case of other is, invoked, question not whether which arises pro- operative, self-evident, Constitution is for that is whether applicable. relied on . vision purposes authority levy derives its taxes local As local territories, ex- general grant not from the to tax as within pressed locally tax is not it follows that ‘i lay provision Congress To empowering to be measured col- Taxes, Duties, Excises,” Imposts, not restrained and is *3 lect power requirement uniformity throughout the But the United States. referred, uniformity, just to, qualification as the restrains Con- as well . imposing impost duty coming into the goods an on United gress from States part incorporated a territory has into and forms of the a been from of the Constitution in This results because clause States. United impose impost upon Congress such an .question not confer does part States to another coming one duty goods United requirement thereof, duty repugnant be besides would and such uniformity throughout . States. United Gbay. By Mr. Justice immediately, cannot extend government The civil territory acquired by force, territory war. Such must over its oWn military power instance, by necessarily, governed under the first government in chief. Civil the President as commander the control of acquired once, possession under mili- take effect at as soon cannot by treaty. possession authority, is confirmed tary or even as soon as that appropriate-political operation by put in the action of It can degree as that time and in such department government, at such may department determine. effect, by territory, either conquered government must take In a civil power, Congress of the treaty-making that of the Uni- action of the ordinarily put an end officeof cession ted States. The subject territory; authority foreign government and to over disposition territory of the United States. to the of the Government acquired disposition belong to the government and so States, President, consisting Senate, of the United Government v. WELL. DOWNES BID Opinion Court. Representatives, chosen and the House elected immediately people representing the of the United States. incorporated into the long

So has not by treaty military occupation makes the con- neither nor cession quered territory territory, of the revenue laws. But domestic the sense ” applicable to the concerning foreign remain con- those laws countries quered territory, changed Congress.- until complete ready government for con- If is not to construct a quered temporary government, territory, which is establish subject to all the restrictions of the Constitution. This was an action in the Circuit Court Downes, begun S. B. Downes & business the firm name of Co.,' under doing the collector of the of New .to recover York, back against port amount, duties to the exacted and under $659.35 paid protest certain at New consigned York, oranges plaintiff thither from the San Juan the Island brought port of Porto Bico the month of after the during November, 1900, of the act a civil passage temporarily providing revenues for the Island of Porto known Foraker Bico, as the act.

The District demurred to the Attorney for the complaint want of jurisdiction court, of its insufficiency averments. The demurrer was sustained, and the complaint dismissed. sued out Whereupon this writ plaintiff or error.

Mr. Frederic R. Coudert, and Mr. Jr., John G. Carlisle for plaintiff error. Mr. Paul Fuller was on Mr. Coudert’s brief.

Mr. Solicitor General and Mr. Attorney General for defend- ants in error. *4 Mr. Justice after Brown, making above an- statement,

nounced the conclusion and judgment court. invplves

This case the question whether merchandise brought into the of New port York from Porto Bico since the passage of the Foraker act, is from exempt duty, notwithstanding “ third section of that act, which requires fif- payment TERM, 1900.

248 Opinion of the Court. centum of the teen duties which are to be per levied, required collected and like articles of paid merchandise upon imported countries.” foreign

1. exception jurisdiction court is not well sec. taken. Stat.- 629, subdivision By-Rev. Courts 4, Circuit are vested with all suits at law or jurisdiction “.of arising equity act for under a revenue from or ton any providing imports of the amount involved. uId irrespective This sho nage,” section be construed connection with for 643, sec. which provides from, the removal state courts to Circuit Courts of the United of suits revenue against officers on account act of any under done color of his or office, such law, any [revenue], on account title or such any right, claimed authority other officer'or under person such law.” Both these sec taken are from the tions act of March c. 4 2, 1833, Stat. 57, 632, known Force and are intended to Bill, evidently commonly all actions include customs officers under color of against acting their office. as we have While, held in De Lima v. Bidwell, actions the collector to back recover duties assessed against ” are not customs cases upon property non-importable Act, are, sense the Administrative nevertheless, actions they an act for a revenue from under provide arising imports, 629, since acts a col the sense of section done his office. This subdivision lector under of sec. color Act of the Jurisdictional the sub repealed these since acts “not in 13, 1888, act of were sequent August statutes tended interfere with prior conferring jurisdic tion or District Courts the Circuit upon cases, special United States over 116 U. S. Mooney, particular subjects.” 5 Wall. See Co. v. Ritchie, also Ins. Philadel 541; v. The Wall. v. The Hornthall Collector, 720; Collector, phia 9 Wall. 560. case construction or As the “involves the appli ” cation of the well as constitutionality sued law the writ of error was properly out from this court.

2. In the Lima we held case De v. Bidwell, decided, just ratification of peace Spain,' Rico be a ceased to a terri- Porto became country, foreign *5 v. BIDWELL. 249

Opinion of the Court. and that duties no col- were longer of United tory "We are merchandise island. lectible brought upon of States now asked to hold that became part declares that within that “ of the Constitution provision uniform and excisesshall be throughout duties, imposts be a sec. 8. If Porto Rico United States.” Art. I, its act duties pro- the Foraker upon imposing of a violation reason of unconstitutional, ducts “ bound to 9 vessels but section clause, becauseby uniformity ” “ from one clear enter, State cannot be obliged páy duties in another.”

The case also whether the rev- involves the broader question enue own force to clauses the Constitution extend their our itself does territories. newly acquired not answer the be found in the Its solution must question. in the instrument, nature created government of its opinion contemporaries, put practical construction this court. in the decisions of by Congress The Federal in was created union thirteen colonies of in Great Britain of con- articles certain federation and one of union,” first which declared perpetual the stile of this shall the United States confederacy America.” Each member of the was denominated confederacy a State. Provision was made for the of each representation (cid:127) State not less than two nor more than seven delegates; no mention was made of territories or other lands, except Art. XI, which authorized the admission of Canada, upon to this “acceding confederation,” of-other if such colonies admission were agreed nine At States. this time several States made claims tracts land the unsettled large West, were at first indisposed relinquish. Disputes over these lands became so acrid as to defeat the con- nearly before it was federacy, fairly, Several put operation. the States refused because articles, the convention ratify had taken no to settle the titles to these steps lands upon prin- and sound ciples but all fear equity them, policy; through accused of being disloyalty, their finally claims, yielded though until held out 1781. Most Maryland these TERM, 1900.

Opinion of the Court. mean’ time ceded interests in these lands, their having. confederate the first territorial 1787, created Congress, gov- ernment River, northwest of the Ohio local self- *6 provided in a government, bill of a a Congress by rights, representation “ who should have a a of delegate, seat right debating, but not for of and the ultimate formation of States voting,” and into the Union on an foot- their admission therefrom, equal with the States. ing original

The reasons, to well-known historical owing confederacy, a was formed new Constitution failure, having proven “the “for United 1787 United States” people by (cid:127) All States of as its declares. America,” preamble legislative were vested in powers Congress consisting representatives from the several made for the ad- no was States, provision no mention was territories, mission of from the and delegates made the Union, as territories separate except portions and that “to make all was dispose empowered or other needful rules and the territory regulations respecting this time all to the United States.” At property belonging lands North had ceded their except unappropriated Justice It was Chief by Taney thought Carolina and Georgia. the sole that How. case, object Scott Dred “ new transfer to the was to govern- territorial clause and States, held in common ment then the property apply objects to that government power give mutual among agreement which it had been destined by ” “ to that the dissolved; power was their States before league ” was not intended to give make needful rules and regulations establishment or to authorize the of. powers sovereignty, that words were these short, territorial used governments —in ob- we But, sense. not in a and political proprietary in..a territo- to establish Bidwell, De Lima v. served too exercised by has been rial long governments an unsettled deemed this court question. acquiesced to be the inevita- case it was admitted the Dred Scott Indeed, of territory. acquire ble consequence, these funda- in relation to three to observe It is sufficient inferred nowhere be that can instruments mental BIDWELL. Opinion of the Court. The considered a were Statés.

territories created people to be solely representatives as a union of governed here, even the relied provision States; “ shall be excises uniform throughout all duties, imposts, States,” provisions explained subsequent on articles shall be laid- tax Constitution, duty “no no shall given State,” preference from any exported of one or revenue to the ports commerce by any regulation -toor bound shall vessels State over nor those another; duties another.” one clear enter, State be pay obliged their .In with States, people, the Constitution deals short, their representatives. Thirteenth Amendment prohibiting servitude within United States,

slavery involuntary inor to their is also any place subject jurisdiction,” significant that there *7 within the of showing jurisdiction places the United States that are no To Union. part say of the this amendment was due to the fact phraseology that it in was intended to the seceded prohibit States, under a slavery that those States were no possible of interpretation longer part the is to confess the in Union, since very point issue, involves an admission if that, these were not a of the Union part were still to the of they subject the United jurisdiction States. the other the hand, Upon Amendment, Fourteenth the “ declares subject citizenship, born or persons naturalized in the United States, the to subject jurisdiction thereof, citizens and of the State wherein reside.” Here they there is a limitation to persons born or in naturalized the United States which is extended to in born persons any place subject their jurisdiction.” the relations question between the legal States and the first territories newly became acquired the subject public discussion connection the with Louisiana 1803. purchase This arose from the purchase fixed primarily policy Spain exclude all commerce This foreign re- Mississippi. striction became intolerable to the number large immigrants who were the Eastern States to settle in the fertile leaving val- TERM,

Opinion of the Court. of that river and its tributaries. ley After several futile at- to secure free . tempts navigation that river by treaty, taken -the was exhaustion of advantage Spain her war with and a inserted in France, provision of October treaty River 1795, by Mississippi was to the com- opened merce the United States. 8 Stat. 138, 140, Art. In IY. October, secret 1800, by of San Ildefonso, Spain retroceded to France the of Louisiana. territory This treaty created such a ferment in this that James Monroe country sent as minister with extraordinary discretionary powers cooperate then minister to Livingston, France, of New purchase for which Orleans, Congress appropriated To $2,000,000. in- surprise negotiators, Bonaparte vited them to make an offer for the whole of Louisiana at a fixed at price finally It is $15,000,000. well known that Mr. Jefferson entertained doubts as to his grave make as to purchase, or, rather, his to annex the and make it of the United States; had instructed Mr. to make no to that effect in the Livingston argeement treaty, could as he believed it not be done. to a legally new Owing war between and France of break- England being upon point need for haste in there was out, ing Mr. negotiations, took the his responsibility Livingston disobeying instructions, and, insistence of consented probably owing Bonaparte, third to the article of treaty, provided inhabitants of the ceded shall incorporated Union of the and admitted as soon as possible, of the Federal according principles of all the and immunities of enjoyment citi- rights, advantages zens of the States; and in the meantime shall be *8 maintained and in the free of their protected enjoyment liberty, and the which This property religion they profess.” evidently committed the to the ultimate, im- mediate, admission of Louisiana as a and State, postponed into the Union to the of incorporation In pleasure Congress. to Mr. in to this, a letter Senator regard Jefferson, Breckinridge of of 12, used the Kentucky, August following language: “ of must, treatv be laid before both course, This houses, because BIDWELL.

Opinion the Court. exercise it. functions to They, respecting both have important and to their in country ratifying see their duty I will presume, would otherwise which to secure good as so it, for paying But I in suppose their power. never again probably for an additional article nation must then appeal nation an act which the and confirming Constitution approving has made no The Constitution had not authorized. previously for still less incorporat- for territory, foreign provision holding in Executive, The seizing our into Union. nations foreign ing thé advances good much occurrence which so fugitive the Constitution.” has done an act beyond their country, Mr. Jefferson cover the To raised by purchase questions first of two amendments to the prepared “ of Louisiana incorporated declared province ” the second thereof; made United States and part “ viz.: Louis- which was couched in a little different language, made a France to the United iana, ceded by Its shall be citizens, United States. white inhabitants foot- as to their same stand, rights obligations, the time other citizens situations.” But ing analogous October either the assembled, 17, 1803, argument, his friends or the of the situation seems to necessity pressing have his his under doubts the Con- dispelled regarding stitution, since his he referred the whole message Congress matter with the wisdom body, saying rest to it will take those ulterior be neces- measures for the immediate sary occupation temporary government for its into Jeffer- country; the Union.” incorporation son’s vol. Writings, p. of this ter- raising money provide purchase and the act civil rise an

ritory providing government gave debate animated which two were Congress, questions prom- : whether the for the ultimate First; inently presented provision into the Louisiana Union incorporation constitutional; and, whether the seventh article of the second, treaty admitting into France for the next twelve ships Spain years Orleans, New other ports entry ports legal within the ceded same manner as the territory, ships *9 TERM,

Opinion of the Court. the United France or coming directly or Sp'ain, any of their colonies, without other being subject or greater or or other duty merchandise than greater that tonnage paid the citizens of an States,” was unlawful discrimi- nation in of favor those and an ports Art. infringement upon I, “ sec. of9, that no shall be preference given by or commerce any regulation revenue to the of one ports State over those of another.” This article of the contained- “ the further that stipulation of time during above space mentioned no other nation shall have a to the same priv- ileges ceded . ports . and it is . well territory; the. understood that the of the above article is to object favor the manufactures, of. commerce, France freight navigation Spain.”

It is to enter into the details this debate. unnecessary The of individual arguments are no for legislators proper subject ju dicial comment. so often influenced They by personal political considerations, assumed necessities of the sit uation, that can even they considered as the deliberate .hardly views who make much them, less as persons dictating construction to be the Constitution the courts. put upon 91 U. S. Railroad, 72, 79. United States Union Pac. Suffice it to took the that the administration say ground that, party to make treaties, under the constitutional there power ample it to hold and under laws govern power acquire territory, and that as Louisiana was to be incor passed by Congress; and not aas State, into the Union as a territory, porated stipu as a State lation became necessary; citizenship for. the of their would have needed lib stipulation safety as would erty, religion, stipulation property arid restrain the undefined to make govern powers ” for Federalists rules and territories. admitted regulations hold but denied territory, acquire power under the Constitu into the Union incorporate tion stood. then also attacked the discrimi- seventh article the treaty,

They French favor of as a distinct viola- nating Spanish ships, tion against preference being given v. BID WELL.

Opinion the Court. The administration another. over those of one State ports to-this Yermont, replied Elliott Mr. party, through to' and intended preserve equal- were such, equal *10 alluded to was cal- the Constitution of and ; ity provision odious discrimi- any from making culated to prevent States. It was not between particular nation or distinctions co- would'have application that this provision contemplated Nicholson of Mr. Mary- Said or territorial lonial acquisitions.” “ is in It for the administration: land, speaking [Louisiana] be without regulated a commerce may nature of whose colony of it been the Island Had to the reference Constitution. of condition admit- similar ceded to under a us, Cuba which was time into Havana, for limited a French and vessels ting Spanish would be this contended that could it have been giving possibly of another, over those a to the of one State ports preference of excises throughout that the duties, imposts uniformity And because the United States would have been destroyed? our to be viewed Louisiana lies own adjacent territory ”? a different light As a debate two bills were one Oc- sequence passed, 2 31, 1803, 245, tober Stat. the President to take authorizing of and to continue the possession territory, existing govern- and the other ment, November 10, 1803, 245, Stat. making for the of These acts provision payment purchase price. continued until March force when new 26, 1804, act was for a 2 Stat. c. 283, passed providing temporary government, 38, in a vesting legislative powers governor legislative to be These council, President. statutes appointed by may be taken of that first, the views expressing Congress, with a for its ul- lawfully provision may acquired by treaty, timate into the that a Union; and, dis- incorporation second, crimination favor certain vessels with the foreign trading no violation of that clause newly ports acquired 1, Art. sec. that declares that no preference shall be of one State over those of another. ports given It is that of this evident discrimination can constitutionality territories are theory supported upon ports within the the Constitution. ports meaning TERM,

Opinion of the Court. The same construction was adhered to for the 8 Stat. the sixth Florida, article Spain purchase of which that the.inhabitants should be provided incorporated into the Union of as soon as be consist- ” ent with the Federal Constitution; principles fifteenth article of which agreed vessels Spanish coming directly laden with Spanish ports productions or manufacture, should be Spanish growth admitted, term of twelve years, Pensacola and St. Au- ports “ without other or gustine, duties their paying higher cargoes, or of than will be tonnage, the vessels of the paid by States,” the said term no during other nation shall the same enjoy within the ceded privileges territories.” So, too, act there annexing Republic Hawaii, was a ptovision effect the customs continuing relations the Hawaiian Islands with the United States and other coun- *11 tries, the effect of which was in collection those compel islands of a articles, certain whether duty upon coming or other States much countries, than the greater tariff law then in duty force. This provided general was a discrimination the Hawaiian against incon- ports wholly sistent with the revenue clauses of the Constitution, if such clauses were there operative. under in very Spain discussion this con- case

tains similar which discriminative are provisions, apparently the Constitution, irreconcilable with if that instrument be held to extend to these islands their cession to immediately upon the United States. Art. IY the United States By agree the term of from the date of the of the exchange ten^years ratifications of the to admit present treaty, Spanish ships .and merchandise to the of the Islands on the ports same Philippine terms as and merchandise of the ships United States ”—a priv- not ilege other It extending was a clear breach ports; in clause manifest uniformity and a excess of question, on authority if commissioners, ports Islands Philippine ports United States. So, Art. too, XIII, scientific, Spanish literary artis tic works . . . shall bercontinued to be admitted free of v. BID WELL.

Opinion Court. such, for the of ten territories, in to be period reck duty years, oned from the date the ratifications of this exchange a clear discrimination in favor is also This treaty.” Spanish into particular ports. productions literary for the these provisions incorporation Notwithstanding not into Union, Congress, organizing .territories of March 26, act but all 1804, of Louisiana other has vast assumed inheritance, territories out of this carved them of own did not extend force, Constitution either that their has in case made each provision, legis- special no law inconsistent with Constitution of latures shall pass or that laws the Uni- the Constitution ted shall be the law of such territories. supreme Finally, enacted Rev. Stat. sec. 1891, general provision “ the and all laws United States shall have the force and effect same locally inapplicable within all the and in territories, here- organized every territory after as elsewhere within the organized, United States.”

So, too, March c. 6, 1820, Stat. 545, an act au of Missouri to form a state thorizing people government, after a heated debate, declared that the territory of Louisiana north of 30' 36° should be slavery forever prohib true that, ited. It is for reasons which have become historical, this act was declared to be unconstitutional Scott Sand 19 How. but it is none the less a ford, distinct annuncia tion over in the territories by Congress property did not in the several obviously States. possess

The researches of counsel have collated .number large other in which instances, has in its enactments recog- *12 nized the fact that intended for the States provisions not did. embrace the territories, unless These are specially-mentioned. “ in laws found the the slave trade with the United prohibiting ” States or territories in thereof; equipping ships port within the of the United the place Statesin ‘jurisdiction in internal revenue the laws, ones of which no early pro- vision was made for the collection of in taxes the not included within the boundaries the and others existing them extended the territories, to or within expressly

VOL. olxxxii —17 TERM, 1900.

Opinion oí Court. ” and in exterior boundaries of the States; acts to laws of Alaska internal revenue Territories extending this and Oklahoma. It.would prolong opinion unnecessarily in to forth the of these acts detail. It is suffi- set provisions to or has not cient that has revenue say applied Congress to the of each case laws as the circumstances seemed territories, for. the territories legislated require, specifically and.has it was its to execute whenever intention laws limits beyond of the States. have been the whatever fluctua- Indeed, may court tions other this has not bodies, even opinion (and been has been consistent in rec- exempt them,) Congress between, and territories un- difference the States ognizing der the Constitution.

The decisions of this not court have been upon subject Some them are based harmonious. altogether upon that the does not Constitution territories theory apply without from territories cases, Other where legislation. arising contain which would had, been such has language legislation the inference that such unnecessary, legislation justify took effect cession that the Constitution immediately upon be States. It may remarked, territoiy that too cases, an these much the threshold of analysis upon found in must not be sev- general given expressions weight territories is over com- eral opinions words be these because may interpreted plete supreme, nor under the Constitution; only supreme meaning other covers hand, statements general in such cases the territories as since will well as found that acts had extended the Con- be already to such subordinated territories, thereby stitution of the territorial not own but. those acts, legislatures, “ It had land. to what become the law of the supreme not to be maxim that general expressions, every disregarded, the case which are taken connection with opinion, the case, those If used. go beyond they expressions control judgment respected, ought suit decision. when the very presented subsequent point of this The reason is obvious. actually maxim question *13 v. BIDWELL. 259

Opinion of the Court. in before the court is and considered care, investigated Other to illustrate it, full extent. serve principles in decided, are considered their relation to the case their on all other cases is seldom inves- bearing completely possible v. 6 399. 264, Cohens Wheat. tigated.” Virginia, n is that v. 2 445, case Ellzey, Granch, The earliest Hepburn held under that clause of the in court Constitu that, which this courts United States tion jurisdiction limiting of different a citizen of between citizens controversies not maintain an action in could District Columbia It was of the United States. Circuit Court argued in used denote a State,” connection, word was simply Justice, distinct said the Chief “as “But,” society. political ’ ‘ in the act of used the word State reference Congress obviously to that term used in the becomes Constitution, necessary in of that in whether Columbia is State the sense inquire strument. The result of that examination is a conviction members of the American are the States confederacy only . . . contemplated excludes from the term the attached signification writers on the law of nations.” This in case was followed v. Baltimore Barney 6 Wall. 280, in City, Hooe quite v. 166 recently Jamieson, 395. U. S. The same rule was applied citizens territories in New Orleans v. 1 Wheat. Winter, in which 91, an attempt a, made to from the District of distinguish Colum bia. But it was said that neither of them is a State in the sense in which that term is in used the Constitution.” In Scott Jones, 5 v. How. and in 343, Miners' Bank v. How. Iowa, 12 it was held that under writs of Judiciary Act, permitting error to the Court of a Supreme State, cases where the validity of a state statute is drawn an act of a territorial question, was not within the legislature contemplation Congress. Loughborough Blake, Wheat. was an action of tres (or, pass appears record, original replevin) brought the Circuit Court for the District Columbia to try a direct for impose tax on that general purposes District. 3 Stat. 216, c. 60, Feb. 17, 1815. It was insisted that could act double in one as capacity: legislating TERM,

Opinion of the Court. for the other as a local States; the Dis- legislature *14 trict of the latter Columbia. In it was cTiaracter, admitted that direct taxes be but exercised, for power levying might District as a state for tax state purposes only, legislature might but that it could not ; the District under purposes legislate “ to Art. sec. I, to and collect giving Congress power lay “ which taxes, excises,” shall be uniform imposts through- out the inasmuch States,” as the District was no part of the was held United States. It that the of this grant was a one without limitation as to and conse- general place, extended all over ex- quently places government it ; tends that extended to the District of Columbia as a constituent of the United States. The fact that Art. part I, declares sec. and direct taxes shall be representatives the several States . . . apportioned among according their furnished a standard which numbers,” taxes respective were but not to of the apportioned; exempt any part country from their “The used do not words mean, operation. on States which are shall be direct taxes repre- imposed be but that sented, representatives; shall apportioned shall in its apportioned direct taxation, application Art. sec. that direct I, 9, ¶.4, That declaring to numbers.” to the was census, be laid in taxes shall proportion applicable “ and will enable Columbia, to the District of ap- with the it share burden, on its just equal portion If the States. tax be laid as on the same accuracy respective words of the restriction. in this it is within very proportion, or enumeration referred a tax to the census It is proportion words of the ninth section It was further held that the to.” taxation, of direct not in terms that the did require system as the territories, to the resorted shall be extended to, when be extended to it shall of the second section words require be un- violence, without therefore States. They may, shall be taxed with- territories a rule when the derstood give them.” out the necessity taxing imposing of this conclu- to the correctness could be no doubt as There ' District of it to the Columbia. so at far, least, sion, applied of the States had been Maryland This District part v. BIDWELL. Opinion the Court. had been was a It

Virginia. subject had attached to United States. never be taken back- There are can irrevocably. steps bound States of The tie that Maryland ward. Virginia without at dissolved, to the Constitution could least the to a formal and state consent Federal sepa- governments ration. of the District Columbia to the The mere cession Federal authority relinquished it did States or from under the not take out of the United aegis had ever consented to that Constitution. Neither party construction District was off, of the cession. before the set If, its inhab- act, had an unconstitutional affecting passed the District it would after itants, have been void. If done it would in other Con- created, words, have been void; equally could District what not do out the gress indirectly by carving *15 it. could not do The District still remained directly. part the United the Constitution. States, Indeed, protected by would have been a hold that fanciful construction to had been once a of the United States ceased to be such ceded to the Federal by being directly government.

In the the delivering however, Chief Justice made opinion, certain observations which have occasioned some embarrass- “ “ ment in other cases. The said and collect he, power,” lay duties, and excises imposts, exercised, and must be exer- cised, the United States. this term throughout Does designate the whole, of the American any particular ? portion empire this can admit but of one It is Certainly answer. the question name to our which is given of States great republic, composed and territories. The District of or the Columbia, west of the is not Missouri, less within the United States than and it is not Maryland less Pennsylvania; necessary, the of our in principles uniformity impo- sition of duties and should in imposts, excises, be observed than in one, the other. Since, then, col- power lay lect taxes, direct taxes, includes coextensive obviously with the and collect power duties, lay excises, imposts and since the latter extends it fol- throughout lows, direct taxes also extends impose through- TERM, 1900. 262 Opinion of the Court. out the States.” far So to the District applicable these Columbia, sound. observations So far as entirely they apply territories, were called for the exi- of the case. gencies

In line with v. Blake is the case Loughborough of Callan v. U. in which Wilson, S. of the Constitu provisions tion trial were held to be in force in relating jury to. District of Columbia. the other Upon hand, Geofroy Riggs, U. S. District of as a Columbia, political ” was held to be one of community, the States of the Union within the of that term as used meaning conven consular tion of 23, 1853, France. The February seventh article of that convention that in all the provided States of the Union, whose laws existing it, Frenchmen should permitted enjoy right of and holding, disposing inheriting property same manner as citizens of the United States; States of the Union, whose laws aliens were not. existing to hold real the President estate, to recom permitted engaged mend to them the of such laws as passage might necessary for the The court was of purpose conferring right. opin ion that if these were held to terms, Union,” exclude District of Columbia and the our territories, gov ernment would be inconsistent placed position stipu that French should citizens lating enjoy right holding, of and in like manner as citizens disposing inheriting property of the United States whose laws it, permitted that the President should recommend engaging passage laws did not States whose laws conferring permit aliens to hold real while time estate, at same refusing *16 of France, citizens in the District Columbia holding property and in some of the United territories, where the power States is in that release from the disa a like unlimited, respect bilities of in favor thus them alienage, discriminating against of citizens of France in similar States having holding property dis No for such legislation. motive can plausible assigned crimination. A of the United which the government desires France should that citizens of apparently enjoy in all the States it district would them the refuse to hardly v. BIDWELL.

Opinion the Court. territorial or of its own depen- embracing capital, dencies.” that, considered establishing principle case may

This States” the term “United with sovereignties, foreign dealing Constitution, used in the than when has broader a meaning the Federal jurisdiction territories all subject includes and conventions In its treaties located. wherever government, so not unit. This is is a nations this with government foreign es- a the territories because comprised Constitution, in their of the States tablished by people authorized is the only organ because the Federal government relations. in their well as territories, foreign shall enter no State sec. Art. I, 10, By or . . . enter confederation, alliance or into any treaty, with another a State; into any agreement compact absurd to hold that the territories, It would be foreign power.” than are under much which are less independent the direct control and tutelage government, general pos- which is thus a forbidden sess expressly particular to the States. (cid:127) It be added this connection at that, rest put doubts applicability regarding Opnstitution of Columbia, District the act of 21,1811, Congress by February 16 Stat. c. sec. extended the 419,426, Consti- specifically tution and laws of the United States to this District. The case of American Canter, Ins. Co. Pet. 511, . originated in a filed in libel the District Court of South for the Carolina, of 356 bales of had been wrecked on possession cotton, coast abandoned to Florida, the insurance companies, to Charleston. Canter claimed cot- brought subsequently ton as bona at a marshal’s sale at West, purchaser Key fide decree of a territorial court virtue of a of a notary consisting under an act of five jurors, proceeding governor council of Florida. The case legislative turned-upon ques- court tion whether the sale effectual to divest the The District interest Judge pronounced underwriters. from which and rendered decree nullity, proceedings both to the Circuit Court. The Circuit Court parties appealed *17 TERM,

Opinion of the Court. reversed the decree District Court that ground of the court at "West were proceedings Key legal, trans- ferred Canter, property alleged purchaser. of

The the Circuit Court was opinion delivered Mr. Justice Johnson of the and is Court, Supreme full in published a note in Peters’ It was Reports. that the argued Constitution vested the admiralty jurisdiction in the exclusively general govern- ment that the ; of Florida had legislature exercised an illegal this and that organizing court, its decrees were void. On the other hand, was insisted that this awas court of sep- arate and distinct jurisdiction from the courts and as such its acts were not to be reviewed in a foreign “ such as tribunal, was the court of South that the Carolina; District of Florida not was of the United States, but an and as acquisition such the dependency, Constitution per se had no effect or over it.” It binding said the becomes,” court solution of these indispensable that difficulties, we should conceive idea the relation in just which Florida stands to the United States. . . . And, it is first, obvious that there is a material distinction between the now territory consideration, that which is under from the acquired aborig- within ines (whether purchase conquest) acknowledged limits also which is acquired by of a line. As to establishment both these there can disputed no that the of the State or sovereignty within question, which it and of the United lies, States, immediately attach, pro- all the laws institutions of ducing complete subjection n the two local and unless governments, general, modified by now to be relates to treaty. considered, territories question subject another previously jurisdiction acknowledged such as Florida to the crown And sovereign, Spain. we have the most the under- subject, explicit proof, of our functionaries, is, standing public to such laws States do extend act mere of cession. act of For, March section an we enumeration of nine, have acts are to be held in force in the Congress, territory; an the tenth section enumeration, nature a bill BIDWELL.

DOWNES Opinion tlie Court. which could not be denied immunities, rights, privileges *18 if came under the Con- inhabitants territory, the this the mere act of . . . These cession.

stitution by States future to be admitted into the Union territory, is no Constitution; the there provi- sole objects express made in the Constitution for the sion whatever acquisition further those He limits.” territories beyond government inci- was altogether held that the territory acquiring was that their dental to the government treaty-making power; “ of Florida did not stand left to that the territory Congress; ” in the of a State United that acts States; relation a the constitution territorial were establishing government that Florida; while, under these territorial acts, legislature had made could inconsistent what nothing Congress .enact it had inherent and in territorial permanent government, in not done so the court at West. organizing Key From the decree of the Court Circuit the underwriters ap- to this and the was court, pealed whether question argued Circuit Court was correct a distinction drawing between at territories the date of the Constitution existing and territories The main contention of the subsequently acquired. appellants was that Courts of Florida had Superior been vested by with exclusive in all and mari- Congress jurisdiction admiralty that time such a was cases; case, therefore law- salvage any of Florida cases to other court giving jurisdiction salvage was unconstitutional. On behalf it was purchaser argued that Constitution and laws the United States were not se in force in nor the Florida, inhabitants citizens per United .the States; Constitution established by the United if the States States people'of ; for were in in Florida force was unnecessary pass an act the laws of to Florida. States extending “ ” “ What is Florida ? said Webster. It no Mr. part % Do United States. ? is it How can it be How represented % Not the laws of the United reach Florida unless particular provisions.” Mr. Chief Marshall in case should Justice opinion read connection 1 and the Con- with Art. secs. Ill, TERM,

Opinion of the Court. ” stitution, of the United States vesting judicial power “ one Court and in such inferior courts Supreme from time to time ordain and establish. The both judges Court and the inferior hold their Supreme courts shall offices during behavior,” etc. He held that court good “ should take into view the relation which Florida stands ” States; ceded becomes treaty of the nation to which it is on the either terms annexed; such stipulated cession, new mas- upon ter shall That impose.” Florida, the conclusion of became a treaty, of the United States and subject under the territorial clause the Con- stitution. The acts territorial providing Florida were examined in held detail. He that the judicial clause of the did above Flor- quoted, apply *19 ida; that the of the held Courts of Florida Superior judges “ their for four office that these courts ; are constitu- years in tional courts which the judicial conferred Con- power ” stitution on the “ can be that general government, deposited; in created virtue of they courts, legislative general right which in the in of of exists virtue government,” sovereignty the territorial clause the Constitution; that the jurisdiction with not a are invested is they part judicial power is coiiferred Constitution, exercise by Congress, those -which over the body general powers possesses States; in territories the United for them legislating exercises combined and Ofa Congress powers general state The act of territorial creat- government. legislature, the court held not to be inconsistent ing question, the laws Constitution of the United and the decree States,” of the Circuit Court was affirmed.

As the vested only judicial to create power Congress whose courts shall hold their offices be- judges during good it' havior, follows if that, necessarily authorizes Congress creation of courts and the for a limited appointment judges it must act time, independently Constitution, upon which is not of the United States within 'the part In of the Constitution. his in this meaning delivering opinion v. BIDWELL. Opinion Court. no reference whatever Mr. Justice Marshall made

case Chief in which 5 Wheat. v. Blake, case Loughborough prior intimated that the territories were he had part it is diffi- if of the United States. But be a they territories, in such could create courts cult to how see clause of the Constitution. power under the judicial except not author- would certainly needful rules and make regulations if it inconsistent with applied ize anything within could be created no such court the territories. Certainly clause. It the restrictions State, under judicial except since been that this case has ever accepted is sufficient say clause of Con- that the for the judicial authority proposition in the territories, to courts created has no stitution application un- has a wholly and that with to them Congress respect from this inference We must assume as restricted it. logical that the other vested in Constitu- case powers tion have no to these or that territories, judicial application in that clause exceptional particular.

This 9 How. Porter, case was followed Benner that- the of these territorial was held jurisdiction Union, the admission-of Florida into the ceased courts upon of them Mr. Justice Nelson remarking (p. 242) nor are not under subject organized as the or distribution powers government, complex ; n law but are the creations, exclusively, legislative ganic Whether, to its and control. subject supervision department, which extend there are that instrument not, provisions it is not now mate and act these territorial governments, *20 of those rial to examine. We are here provisions speaking Federal and State refer to the distinction between particularly were . . . Neither they organized jurisdiction. (p. 244.) were invested under the by Congress were and which that incapable body powers jurisdiction of a To a court within the limits State.” conferring upon 13 Wall. Good 434; effect v. same are Clinton Englebrecht, 141 States, 95 and McAllister v. United Martin, U. S. 90, 98, U. S. 174.

That the the territories is vested Congress over power TERM, 1&00. 268 Opinion of tlie Court. without limitation, has been considered the power foundation which the territorial upon govérnments also rest, asserted Chief Justice Marshall in McCulloch by v. Maryland, Wheat. and in United States v. 14 Pet. 526. Gratiot, So, too, Mormon Church v. United U. S. in1, had to holding Congress power charter repeal church, Mr. Justice used the Bradley forceful lan following “The over the guage: power territories of the general from and inci plenary, arising dental to acquire territory itself, from the given Constitution to make all power needful rules and regulations respecting other territory property belong- United States. It would be ing absurd to hold that United States has power and no territory, acquire power it when The govern acquired. power other acquire territory, than the northwest of the Ohio Territory River, (which belonged to the United States at the is de- adoption Constitution,) rived from the and the to declare treaty-making power power on war. The incidents these are those of carry powers national to all sovereignty, belong independent govern- to make ments. The con- acquisitions cession is an incident of by treaty national quest, of Louisiana, when from sovereignty. acquired and the west France, territories Rocky Mountains, when Mexico, became absolute and do- acquired property main of the United to such conditions as the subject in its had seen fit to government, diplomatic ac- negotiations, then those cept relating rights people inhabiting territories. said territories, Having rightfully acquired United States was the im- one could laws them, and its over them was pose sovereignty . . . Doubtless complete. Congress, legislating.for territories would to those fundamental limitations subject in favor of' which are formulated the Con- personal rights stitution and its but these amendments; limitations would ex- ist rather and the inference of the Constitution general spirit from which derives than powers, express and direct of its See also, the same provisions.” application *21 269 v. WELL. BID

Opinion of the Court. 129; S. 101 U. Yankton, v. Bank County National effect, 15. S. v. U. Ramsey, Murphy a law of it was held that 437, 11 How. v. Reid, Webster In the trial by jury of Iowa, prohibited the Territory actions, contract to recover founded on payment at law, certain little value as the case is of bearing was services, void; for of the Constitution the extension upon question of Iowa, law of the Territory inasmuch as organic Territory, laws of the extended the reference, and by by provision express of 1787,(which the ordinance provided States, including United so far as were for applicable; trials,) jury expressly sec. 12. 5 Stat. 235, 239, the case was ground. put upon a law of the Terri- 145, 98 U. S. In v. United Reynolds of fifteen was for persons, of Utah, juries providing grand tory sec. 808 Rev. Stat. constitutional, required held to be though or District before Circuit that a jury empanelled grand than sixteen consist of less States shall Court 808 was held Section more than nor twenty-three persons. The territorial and District Courts. Circuit apply only own laws. free to act obedience their courts were S. had been convicted 453, In 140 U. Case, Ross’s petitioner murder Tribunal of a the American Consular Japan, American vessel the harbor of Yoko- committed an a death.- There was no indictment and sentenced to hama, court affirmed and no trial a This jury. petit jury, grand had no conviction, holding applica- “for the ordained and established since tion, was. limits. and not for countries outside of their America,” or in- it affords accusation of against capital The guarantees indictment or crimes, except by presentment grand famous trial accused, for an when thus by jury ap- impartial jury, within the or who citizens and others United States, ply else- for offencescommitted there trial alleged are brought abroad.” not to residents temporary sojourners where, that a 166 U. S. held Thomas, 707, was In Springville the whole number of less than returned jurors verdict of the Seventh Amendment contravention because invalid, c. and the act Congress April the Constitution TERM,

Opinion of the Court. *22 18 Stat. that no 80, 27, has been provide party shall of trial in cases deprived by jury at cognizable It common law.” was also intimated that “could Congress not to impart constitutional change rule,” was true with since obviously Utah, act respect organic of that had extended to Territory expressly Constitution and laws As States. we have already that held, once made could not be withdrawn. If provision the Consti tution could be withdrawn it could be directly, nullified in acts inconsistent with it. The directly by passed Constitution would thus to exist cease such, become of no. greater than an act of authority In ordinary American Congress. v. Fisher, Pub. Co. U. S. a similar 464, law for providing was verdicts put express above majority ground stated, act of Utah extended the organic Constitution over These were Territory. rulings repeated Thompson 343, U. S. Utah, 170 felonies committed applied before became a Territory State, the state although constitution the same continued provision. from the then, this court opinions

Eliminating, expres- to the case, sions unnecessary disposition particular exact therefrom the decided each, the follow- point gleaning be considered as established: ing propositions the District of Columbia and 1. That the territories are not clause of within the the Constitution judicial giving citizens of between different States; cases jurisdiction not within That territories are 2. meaning Re- sec. writs error from Statutes, vised this permitting cases where a state statute is court drawn validity question; the District of Columbia and the

3. That territories are States, in treaties with is used re- as that word foreign powers, inheritance of- ownership, disposition property; spect the territories are within the Con- 4. That clause for the of a creation and such stitution Court Supreme providing see fit to courts as inferior Congress may establish; does not 5. That countries apply foreign and that or to therein conducted, may lawfully trials Congress v. BIDWELL. Opinion the Court. the in- without tribunals, before consular such trials for

provide aof grand petit jury; tervention ex- has been once formally the Constitution That where nor neither the ter- territories, tended by therewith. laws inconsistent enact can ritorial legislature 19 How. remains v. Sandford, of Dred Scott The case <ol armis et an action trespass brought considered. This was of Missouri Scott, alleg the District Circuit Court citi Sandford, Missouri, against himself to be a citizen of ing jurisdiction of New York. Defendant pleaded zen becausea of Missouri, negro was not a citizen of the State Scott as negro were imported ancestors descent, African whose demurrer and the Plaintiff demurred to slaves. plea with leave counsel sustained; by stipulation whereupon, *23 and issue, in the bar general defendant court, pleaded the lawful a slave and property that the was plaintiff specially him. The to restrain had a such, he defendant, and, as in also involved the suit. wife and children of the were plaintiff in had The facts brief that been a slave were, plaintiff belong- ; to Dr. a in Em- Emerson, that, army ing surgeon erson took the from the State Missouri to Bock plaintiff and to Island, Illinois, Port Minnesota, subsequently Snelling, and held him (then known there until 1838. Louisiana,) Upper Scott married his wife of whom the children were subse- there, In born. returned to Missouri. quently Two First, were whether the record: questions presented by the Circuit if Court had it had and, jurisdiction; second, juris- to diction, was With erroneous or not? judgment regard “ the first the court it was to de- stated that its duty question, whether the not sufficient facts stated in the are plea cide to in a show that the as a citizen is not entitled sue plaintiff court the United was whether States,” and that question “ into and whose ancestors negro, country, were imported sold slaves, community became a member political formed and into the Constitution existence brought and and as such to all entitled rights privi- and that immunities instrument leges guaranteed by a court citizen, suing one which privilege rights TERM, Opinion oí the Court. It the United States.” was held that he was not, was ” under the words included citizens the and therefore could claim none of the rights privileges instrument for and provides secures citizens of ” that did States; not follow because he had all of'a citizen of a rights privileges State, he must be a citi- zen of the United States; that no State could law of its by any own “introduce a new member into the political community ” created Constitution; that the African not in- race was tended be included, and formed no who people framed and adopted Declaration of Independence. of the status question and the several negroes England States was considered at the Chief great Justice, length by the conclusion reached that Scott was not citizen of Missouri, and that the Circuit Court had no case. jurisdiction

This was sufficient to of the case without reference dispose as the his question but, insisted slavery; plaintiff upon title to freedom and the fact he and his wife, citizenship were, born taken their slaves, owner four though kept Minnesota, Illinois and years became free, they thereby their return Missouri became citizens of that upon State, Chief Justice discuss whether Scott question proceeded against still a As the court had decided slave. his citizen- it was insisted that upon abatement, further ship plea decision of his freedom was extra- slavery question and mere obiter dicta. But Chief Justice held judicial the court' did correction of one error in below not deprive *24 the court of the further into appellate the power examining record and material error other have correcting which.may been committed that the error of an inferior court in ; actually for one a case in which pronouncing judgment parties, it had no can into be looked corrected jurisdiction, even it court, had decided a similar though question presented in the pleadings. to decide the case held that

Proceeding merits, he upon the territorial clause of the Constitution was confined to the ter- which United States at time ritory belonged Con- (cid:127)m v. BID WELL.

Opinion Court. did not and to was subse- stitution adopted, apply territory from a foreign government. quently acquired In as to what further examining question provision authorizes Federal to ter- Constitution acquire limits of the United and outside "States ritory original therein over the what exercise person property powers may he use of of a citizen of the made following reliance is plaintiff expressions, upon great placed no in this There is case certainly power given by (p. 446): establish or maintain the Federal government or at a distance, colonies on the United States bordering . . if ruled . and a new and at own governed pleasure; is it needs further admitted, State no legislation by Congress, relative and the Constitution itself defines the rights because and duties of the the citizens of the and State, and State, powers no the Federal But government. power given acquire be held in that char- governed permanently acter.”

He further held that citizens who to a can- migrate not be ruled mere colonists, that while had the over territories until legislating States were formed it could not them, citizen of deprive his property because he it into a merely brought particular .territory that this doctrine to slaves as well applied toas other Hence, followed that the act property. of Congress a citizen from prohibited slaves in holding owning territories north of 36° 30' (known the Missouri Compromise) was unconstitutional and void, the fact that Scott car- ried into such territory, what now known as referring did not Minnesota, entitle him to his freedom.

He further held that, whether he was made free by being taken into the free State of Illinois and there two being kept years, depended laws of Missouri and not those of Il- (cid:127) linois, and that decisions court highest State his status as a slave continued, his resi- notwithstanding dence of two years Illinois.

It must be admitted this case is a strong authority favor of the if plaintiff, of the Chief Justice be opinion

VOL. clxxxii —18 *25 TERM, 1900.

Opinion of tlae Court. taken, it is decisive Ms favor. We are not, full value at its before the fact the Chief that, to overlook bound however, he had merits, utterance to his Justice opinion upon gave the case adversely already plaintiff upon disposed that, view excited politi- jurisdiction, question at it is unfortunate that time, cal condition country the merits, he felt to discuss the question compelled upon par- that it in view of the fact involved a that an so ruling ticularly had been in for act tMrty years, Congress,.which acquiesced It from the was declared unconstitutional. would opin- appear ion of that the reason Mr. real Wayne discussing .Justice was “there had become these constitutional that questions ” such difference about them that the opinion peace the settlement them harmony country required decision.” successful. judicial (p. 455.) attempt tó is sufficient that the did not in the It say country acquiesce and that fol- war, the civil thereafter opinion, shortly as well lowed, such changes judicial, produced public of this as to case. sentiment, authority seriously impair much in the of the Chief Justice which While there is opinion that he Consti- tends thought provisions prove force west of their own territories extended tution distin- decided actually readily question .Mississippi, in the under considera- from the one involved cause guishable is so the territories slavery tion. The power prohibit duties territorial different from impose upon pro- power different the Con- such ducts, provisions depends be considered as can stitution, scarcely analogous, of the- clause unless we assume every broadly as to the States—a claim the territories as well attaches to quite of the court Canter Case. with inconsistent position that slaves are true, If the indistinguishable assumption from the Dred Scott case is irre- other inference property, no their introduc- had sistible prohibit would be insisted that into It scarcely tion a territory. settlers to territories could with one hand invite .locate them the other and with deny them. take The two their .to property belongings v. BID WELL. Opinion oí Court. *26 other one could from each that

are so scarcely inseparable withheld without an exercise the other of arbi- granted with the inconsistent of a underlying principles trary be claimed with It indeed free might great plausi- government. would amount that such a law deprivation bility prop- Amendment. The within the with Fourteenth erty difficulty was that the court refused to make the Dred Scott case a dis- and a tinction between general, wholly exceptional property class of Benton stated the distinction Mr. tersely property. his slave that- the into the Virginian might carry saying him not with but he could law territories, Virginian carry him which made a slave. his Mr.

In of the Dred Benton case, Scott states history that the doctrine extended to Constitution territories well as to made its Senate in the States, first appearance session to amend bill ter- 1848-1849, an attempt giving ritorial, New Mexico and California, Utah, (itself “ ” hitched on to a bill,) by general appropriation adding “ words that the Constitution the United States and all and the several acts of singular be and Congress (describing them,) the same are extended and hereby full force given efficacy “ in said territories.” Mr. Benton: The Says novelty of this strangeness called Mr. re- Webster, who proposition up as an and as pulsed an absurdity the scheme of impossibility the Constitution to the extending in- territories, declaring strument to have been made for territories; Congress territories governed Consti- independently tution and with that no of it it; went to a incompatibly but what territory, send; chose that it could not. act of itself not even in the anywhere, States for which was it and that made, it an act of it in required put opera- tion before had effect Mr. was of' the same anywhere. Clay ‘ and added: opinion Now, I must the idea that eo really, say instantly the consummation of the treaty, Constitution. of the United itself over the spread acquired territory and carried with the institution of along so irrec- slavery, oncilable with reason I my comprehension, possess, know I hardly how to meet it.’ the other hand, Mr. Cal- Upon TERM, 1900.

Opinion of the Court. into them under avowed his intent to slavery carry houn boldly of the- enemies and denounced of the Constitution, the wing it.” who South all opposed and a contest. House, amendment was rejected the loss on which threatened appropria- general

brought and the amendment was tion bill which this incorporated, “ said Mr. from its amendment. Such,” receded Senate finally this under which circumstances Benton, were portentous in the American Senate, first revealed itself new'doctrine an act of Con- then as sanction requiring needing legislative territories and into give carry gress the Dred Scott case he says.: it force there.” Of efficacy note great I conclude recurring introductory *27 of all the errors,) error of the court, (father fundamental political to the terri- the Constitution of the extension of that assuming naked it to be a I it for seems assump-' tories: call assúming, stand or a to it, to upon, tion without a reason leg support and whole itself, history the Constitution condemned by it to ? Who were administration. parties its formation framed it Their Federal alone. delegates The States it in the conventions. state their citizens'adopted convention; and it had then existence The Northwest Territory voice either it had no framing for three yet been years; at no no instrument, Philadelphia, delegate or adopting 'for their will adoption. preamble' of it submission not alluded to it.” Territories it made States. shows of the decisions the results holding Finally, summing up and the self-extension of the Missouri Compromise the invalidity “ the de- he that to the declares territories, of the Constitution of all the with the uniform action departments conflict sions to the its 'foundation present the Federal government rules be received as Congress and cannot time, governing that action, admitting without reversing people an altered Con- court, accepting political supremacy from hands and new point stitution taking portentous in the- government.” working departure in the case under consideration To sustain judgment of the artides that none necessary show no means becomes v. BIDWELL. Opinion of the Court. to the Island Porto Rico. There the Constitution apply such distinction between a clear prohibitions go at of. to act all, root Congress irrespective very “ and such as are

time or operative only throughout place, ” or the several States.. United States among “ no declares that bill of attainder when the Constitution Thus, and that “no title of or ex law shall be passed,” post facto States,” it the United shall be goes nobility granted by a bill Per- pass description. competency Congress o/’ Amendment, to the First the same remark haps, may apply an establishment shall make no law respecting the free exercise thereof; abridg- religion, prohibiting or the the freedom of or of the ing speech, press; and to assemble, people peacefully petition do to be wish, however, a redress We grievances.” far bill of understood as an how rights expressing opinion contained in the first amendments is of how eight general far of local application. the other when Constitution declares hand, Upon

all duties shall be uniform States,” throughout becomes whether there be necessary inquire any territory over which has which is not a jurisdiction “ United States,” which term we understand States whose united to form the and such as have people since been admitted to the Union an with them. equality Not did the the Thirteenth Amend- people adopting ment thus a distinction between the United recognize *28 “ to any their place subject jurisdiction,” in itself, the act of March c. 2 Stat. 27,1804, 298, providing for the of the proof public records, act applied provisions “ not court and office within the only States,” United every “ but to the courts and offices of the territories of respective the United and countries to the of States, subject jurisdiction the United as to the courts of States,” and offices the several is, States. This the classification, adopted by Eighth Congress, carried into the Revised Statutes as follows:

“.Sec. 905.' The of acts the of or State Terri- legislature any TERM, 1900.

Opinion of the Court. tory, the United or of any country jurisdiction subject be etc. authenticated,” shall All which books, Sec. records exemplifications in office State or or may any public Territory, kept to the etc. States,” any country subject jurisdiction (cid:127) words Unless these are to we must rejected meaningless, treat of the fact that them as there by Congress recognition to the be territories jurisdiction subject which are not the United States. In of the words sec- I, Article determining meaning tion “uniform we States,” are bound throughout to consider not provisions forbidding preference being to the over those of another, one State given ports (to attention has been but the other clauses declar- already called,) that no tax or be laid on shall articles from ing exported duty and that without shall, no State consent of any State, Con- or duties nor upon gress, any imposts imports exports, lay all of these tonnage. object any duty pro- in which united the Constitution tect the States forming which would discriminations by operate unfairly Congress, some States and others. The upon equally injuriously upon Moore, Justice White Knowlton v. S. of Mr. 178 U. opinion historical an elaborate review 41, contains proceedings resulted these dif- convention, adoption their and he there ferent clauses and comes arrangement, " although preference conclusion provision (p. 105) duties, and that (cid:127)between uniformity ports regarding imposts were ornein one their and excises purpose, adoption,” they became (cid:127)were originally placed together, separate only Thus Constitution purpose style.” arranging construed irresistible the words purpose together, ” United States from the ;“throughout indistinguishable or between and that States,” words the-several these “among intended to commerce between apply only prohibitions were of the several States as then or should there- existed ports after be admitted Union.

Indeed, practical interpretation by Congress put been continued has and uniform to the effect long *29 BID

DOWNES WELL.

Opinion of the Court. that the Constitution is .to territories acquired by applicable shall so when and so far as purchase conquest only Congress “ direct. to to State its every Notwithstanding duty guarantee in this sec. IV, Union a form of Art. republican government,” of Webster, understand, we definition according a whole which the resides government power supreme elected and is exercised body people, .representatives hesitate, did not organization by them,” original Florida, territories Northwest Louisiana, Territory, Illinois and and its subdivisions of Indiana, Ohio, Michigan, to still es- Alaska, and more the case Wisconsin, recently tablish form of a much greater analogy bearing to a British crown America, than a State colony republican and to and coun- vest the either in a legislative power governor cil, or a President. to be governor judges, appointed by It was not until had a certain attained they population them vote power given organize legislature In all these as in as well people. cases, Territories subsequently west of the organized Mississippi,Congress thought necessary either to extend the laws of the United States over or to them, declare that the be inhabitants should entitled trial and of the enjoy bail, by jury, privilege of the writ of habeas well as other corpus, privileges bill of rights. We are also of that the opinion power acquire territory such, not implies govern territory, what prescribe terms the United States receive will

inhabitants, what their status shall inbe what Chief Jus- tice Marshall the American There termed seems Empire.” to be no middle between and the ground doctrine position that if their inhabitants do become, an- immediately upon nexation, citizens United States, their children thereafter born, whether or civilized, are savages such, entitled rights, immunities If such privileges citizens. their status, the will be serious. In- consequences extremely if deed, is doubtful would ever assent to annexa- tion of the condition that its how- territory upon inhabitants, traditions, ever to our foreign habits, modes TERM, 1900. . Opinion Court. *30 at life, shall become once citizens United States. In Of its treaties hitherto the has made treaty-making power special all for this in the of Louisiana cases and Florida, subject; provision “ the inhabitants shall be into by stipulating incorporated the Union of the United States and admitted as soon as possible . . . to the of all the and im- enjoyment rights, advantages ” munities of citizensof the United in the case of States; Mexico, “ should be into the and be ad- Union, they incorporated mitted at the time, be (to proper judged Congress to the of all the of citizens States,) enjoyment rights ” of in the case of that the inhabi- States; Alaska, “ tants who remained three with the of uncivi- years, exception lized native shall be admitted to the tribes, of all enjoyment etc.; and in the case of Porto Rico and the rights,” Philip- “ that the civil status native pines, rights political . inhabitants . . shall determined In by Congress.” all these cases an there is denial of the of the in- implied habitants to American until further citizenship Congress by action shall its assent thereto. signify

Grave are felt eminent apprehensions danger by many men—a fear lest an unrestrained possession power lead to unjust part, may oppressive legislation, Congress in or their territories, inhabitants, which the natural rights in a centralized These how- fears, despotism. may engulfed in the action of in the find no ever, past justification in of the British Parliament nor the conduct towards century, the American Revolution. In- since outlying possessions court in the instance in which this has declared an deed, act of unconstitutional trespassing upon rights such action was dic- Missouri territories, (the Compromise,) tated and so far com- motives justice, humanity in manded as to be embodied the Thirteenth popular approval Amendment to the There are certain Constitution. principles of natural inherent character which justice Anglo-Saxon need no in constitutions or statutes to them expression give effect or to secure manifestly dependencies against legislation itself, hostile to their interests. Even in the Foraker act real of which is so assailed, vigorously power constitutionality v. BIDWELL. Opinion of the Court. Rico to to the Porto repeal assembly given legislative in this it has seen case, tariff very question power Marshall in Gib- of Chief Justice

fit to exercise. words of Con- 9 Wheat. 1, bons Ogden, respect in this connection: commerce, regulate pertinent gress like others vested This said he, Congress, power,” extent, to its utmost be exercised itself, complete no other than are limitations prescribed acknowledges of Con- and discretion Constitution. . . . The wisdom the influeilce which their with the gress, identity people, as in this, their constituents at elections, are, many possess war, other sole instances, that, example, declaring restraints on which them from its have relied to secure *31 abuse. are the restraints on must often which the They people on in all rely solely, representative governments.” in So, v. Wheat. too, 543, Johnson McIntosh, 589, was him said : “ The title is and maintained force. by conquest acquired The its limits. conqueror prescribes act- Humanity, however, on has established, as a ing public opinion, general rule, that shall be and conquered wantonly oppressed, their condition shall remain as isas with the ob- eligible compatible of the jects Most are conquest. usually, they incorporated with the victorious and become nation, or citizens of subjects with which government are new connected. The and they old members of the society each mingle other; distinc- tion between them is lost, gradually make one people. Where this incorporation practicable, demands, humanity a wise that the policy requires, rights conquered prop- should remain erty that the new unimpaired; should subjects be as the governed equitably old, that confidence in their should banish the security sense gradually painful being from their ancient separated and united connections, force to strangers.

“When the and the conquest complete, inhabi- conquered tants can be blended with the or conquerors, governed as safely a distinct people, public opinion, which not even tüe conqueror can these disregard, restraints imposes and he can- upon him; TERM, 1900.

Opinion Court. and hazard to his fame, them without his not neglect injury power.”

The of Mr. Justice in the case remarks White following in S. court Moore, Knowlton 178 U. which the up also held the features tax, perti progressive legacy nent: ¿sserted must it is arise grave consequences future if a tax be levy recognized progressive ultimate mere assertion that free involves aspect is a and that failure, grossest representative aie foreshadowed courts abuses unless the usurp If a where arise, function. case should legislative ever purely arbitrary an exaction is confiscatory imposed bearing aof other be form of will time progressive tax, guise to consider whether can afford enough judicial power inherent fundamental principles remedy by applying be ex- even there no individual, though protection (cid:127) Constitution to do so.” authority press and distant the annexation of is obvious It outlying of race, will arise differences questions possessions grave and from differences and customs laws people, habits, action may climate and require soil, production, the annex- that would quite unnecessary inhabited only by people ation contiguous bodies of native Indians. scattered race, same there decide, without intending We suggest, *32 in the natural enforced certain rights, between distinction with them, interference against by prohibitions or remedial which be termed artificial rights, what may ovyn the former Of to our system jurisprudence. are peculiar ato public to one’s own are opinion religious class the.rights God accord- to said, as sometimes them, or, worship expression to own conscience; of one’s per- to the dictates ing to freedom and individual speech liberty sonal property; to due to to free courts justice, process access press; to immunities laws; and to of law equal protection an as cruel and searches well seizures, from unreasonable immunities as are in- and to such other unusual punishments; v. BIDWELL. 283 Opinion of the Court. are class the latter Of to a free government. dispensable 21 Wall. v. Minor Happersett, to suffrage, to citizenship,

rights out in pointed methods procedure and to particular jurispru Anglo-Saxon are peculiar the States held by been have already and some dence, of individuals. protection proper to be unnecessary toas American people decided by be finally Whatever may they inhabitants —whether and their these islands status or be of States permitted the sisterhood into be introduced shall that, not follow does to form governments independent —it matter of decision, people that meantime, awaiting of our Constitu provisions unprotected rights personal of Congress. control arbitrary to the merely tion, subject under princi are entitled aliens, if Even they regarded life, liberty be of. the Constitution protected ples court re this held by been This has frequently property. not aliens, even when Chinese, po possessed spect Wov. States.' Yick Hop of citizens litical rights S. U. 356 Yue v. United kins, ; U. S. Fong Ting 698; Lem Moon 158U. S. Sing 538, 547; Wong v. United Wing States, 163 U. S. do'not how desire, 228. We ever, the difficulties anticipate which would arise naturally connection, to disclaim intention to hold merely that the inhabitants of these territories are to an unre subject strained on the to deal with them part Congress that have no which it is bound to theory they rights respect. must be'entrusted to powers

Large necessarily Congress with these and we are bound to assume dealing problems, will be exercised. That these judiciously powers may (cid:127)abused is But un- the same be said of its possible. may powers der the Constitution as well as outside of it. Human wisdom has never devised a form of that it so perfect to bad It is never conclusive perverted purposes. of certain argue against possession possible powers abuses of them. It is if should ven- safe say ture interests, dictated selfish upon legislation manifestly would Indeed, receive at the rebuke hands quick people. do could scarcely injustice possible greater *33 TERM,

Opinion of the Court. to these islands than would be that it involved could holding not the States taxes and without impose excises extending the same taxes to them. Such would them requirement bring at once within our internal revenue system, including stamps, licenses, excises and all the of that and paraphernalia system, it to territories which applying have had no experience kind, where it would’ an intolerable burden. prove This was subject the Senate commit- considered carefully tee of the Foraker charge bill, which after an exami- found, nation facts, bur- Porto Iiico was property already dened with a debt private amounting probably $30,000,000; that no system taxation was or ever had been in property force in island, and that it would two probably years require one and secure inaugurate returns from that the revenues it; had been raised always duties chiefly exports, imports and that our internal revenue if in that laws, island, applied would prove ruinous to and inter- oppressive many people ests; to undertake to collect our internal revenue heavy far tax, heavier than ever their Spain imposed upon products would be to invite law so innu- vocations, violations merable as to make and to almost cer- prosecutions impossible, alienate and will of that tainly destroy good friendship for the United States. people

In involved in this kindred case and passing upon questions we overlook the fact while that, the Consti- cases, ought tution was intended to establish form of permanent govern-, elect to ment the States which should take of its advantage indefinite conditions, future, continue for an the vast possi- bilities of future have could never entered the minds of its framers. The States had from a war recently emerged with one of the most nations of were dis- powerful Europe; heartened the failure of the and were doubtful as confederacy, of a union. Their was con- feasibility stronger fined a narrow land on the Atlantic from Can- coast strip (ilaim with a Florida, ada somewhat indefinite where their beyond Alleghenies, sovereignty disputed tribes hostile Indians as was believed, supported, popularly who had never delivered British, formally possession v. BIDWELL.

Opinion of the Court. *34 Mis- The vast of territory beyond under the treaty peace. since France, had claimed been which formerly sissippi, and the nation, still a powerful had Spain, belonged Under of Western owner of a Hemisphere. great part of an- little wonder that is these circumstances question debate. The not a was made these territories nexing subject so a union of the States were great, difficulties about bringing whole that the thought to it so formidable, seemed objections obstacles. these of the convention centered surmounting upon clause, was with a single territories dismissed question then to the territories existing, giv- apparently applicable only (cid:127) them. dispose ing power govern Congress as been contemplated Had the of other territories acquisition within little more that, could it have been foreseen possibility, not only than destined to one hundred we were acquire years, Oceans, vast the Atlantic Pacific whole between region in islands but the in and distant Kussian America possessions have been should is incredible that no Pacific, provision made for and the the Constitution whether them, question should should not extend to them have been set- definitely it be tled. If once conceded that we at liberty acquire arises that our re- foreign Avith territory, presumption power to such territories is the nations same Avhich other spect power have been accustomed to exercise to territories respect them. in If, Avhich acquired limiting Congress power towas exercise within the United it was also.intended to limit it with to such as the territories regard people thereafter such limitations should should United States acquire, Instead find we the Constitution that, have been expressed. clause, in the territorial except speaking no limitations in terms, absolute its upon suggestive Avith States could them. The Congress dealing power such themselves pos- to Congress poAvers they only delegate sessed, had no new they poAver acquire in that connection. The inference had none to logical delegate new terri- if had that power from this is, Congress acquire conceded, poAver hampered tory, we assume hand, the other If, constitutional provisions. TERM, Opinion of the Court. that the territorial clause of the Constitution was not intended to be restricted to such as the United States then pos- there is sessed, the Constitution to indicate nothing that the with them was Congress intended to defiling restricted of the other by any provisions. is a There new States provision, admitted into this Union.” These words, course, carry the Constitution with but them, is said nothing regarding of new territories acquisition the extension of the Constitu- tion over them. The liberality legislating Constitution into all our territories has contiguous undoubtedly fostered the it went there impression own force, there is in the Constitution nothing itself, little in- *35 to it, confirm that put upon terpretation There is impression. not even an of an analogy provisions ordinary mortgage for its attachment to without after-acquired which it property, covers at the date of only property existing In mortgage. there is short; absolute silence upon executive subject. have for more legislative departments this silence a as than the idea century interpreted precluding attached to these that the Constitution territories as soon as ac- and unless such be interpretation manifestly quired, contrary should be to the letter followed spirit Consti. Lim. secs. 81 to department. Cooley’s judicial Co. v. 85. U. Lithographic Sarony, Burrow-Giles S. S. 143 U. Clark, Field 57; differ men

Patriotic may widely intelligent but of this or that this is a desireableness acquisition, solely ¥e can consider this of the case question. aspect political far that no construction of the Constitution should so say which would be prevent Congress considering adopted unless case instru- merits, each language the. demand it. A false at this time ment imperatively step might of what Chief be fatal Justice Marshall development in American Choice some the natu- called the cases, Empire. of small bodies ones in ral towards others, large gravitation others, of a successful war still result about con- may bring render the annexation ditions which would distant posses- v. BIDWELL. McKenna, concurring. White, Shibas Justices are inhabited alien If those possessions desirable. sions methods customs, laws, from us in religion, differing races, the administration govern- modes thought, taxation Anglo-Saxon principles, according ment justice, at once arises whether ; be question a time impossible a ulti- time, that, to made for not concessions ought large and the out, carried blessings own theories may our mately, extended them. under the Constitution aof free government in the Constitution there anything to hold that decline We action. to forbid such of Porto Island Rico is are therefore

We opinion the United States, and belonging appurtenant the revenue clauses within of the United States constitutional, so act Foraker ; of the Constitution and that island, from such duties far as upon imports imposes exacted this case. back the duties cannot recover the plaintiff is therefore of the Circuit Court The judgment

Affirmed. Justice with whom concurred White, Mr. Mr. Justice Shiras of affirm- and Mr. Justice McKenna, uniting judgment ance. affirm- announcing judgment

Mr. Justice Brown, has in stated his reasons for his concurrence his ance, opinion result I concur. As, In the likewise how- such judgment. *36 to do if the which cause me so are different ever, from, reasons if with, not in conflict those in that its mean- expressed opinion, misconceived, me to the is becomes state by my duty ing . which me. convictions control

The is the amount of on merchan- duty recovery sought paid from Rico after dise which came into the United States Porto was made in virtue of the act The 1, 1900. exaction July entitled An act 12,1900, temporarily Congress approved April and a civil for Porto Rico, and revenue provide government for c. 191. recover 77, other Stat. The-right purposes.”- the is ratifl- Rico, on the Porto by predicated assumption cation became into incorporated Spain, TERM, White, McKenna, Shiras and concurring,

Justices and therefore act imposed I, Article sec. duty question clause repugnant that The shall providing have To and Power collect Duties, lay Taxes, and Imposts Excises, the Debts the common pay provide Defence and -gen- eral Welfare States; all Duties, Imposts shall be Excises Uniform the United States.” Sub- throughout it is contended sidiarily, collected was also duty repug- nant to the clauses of the export preference Constitution. But as the case concerns no on from the duty goodsgoing States to Porto this Rico, must on also proposition depend that the hypothesis the Constitution provisions referred to to Porto Rico because that island has been apply incorporated into the United States. It is hence manifest that this latter con- tention involved-in the need- not be oné, previous sepa- considered. rately at bar arguments embrace which seem many propositions me to if irrelevant, or, relevant, to be so to rea- contrary in conflict with

son and so decisionsof court as to previous but a cause them to notice. To eliminate all con- require passing of this to come to character, troversies thus con- pivotal involves, which the case let me state and concede tentions soundness of some so, principles, referring, doing authorities sustained, margin such comment some of them as to me making appear necessary.

First. The of the United States was born of the government and all which it Constitution, powers exercise' enjoys may must either derived from that by implication expressly instrument. Ever then, when an act is chal- any department because not Avarranted the exist- Constitution, lenged, ence is be ascertained whether authority by determining has been conferred either in ex- terms or lavvful to be drawn implication, ex- press conferred or deduced as an attribute which authority press legit- inheres the nature of the and which imately powers given, from the character flows established In other Constitution. Avhilstconfined to words, its constitu- *37 v. BID WELL. 289. White, McKenna, concurring. Shiras Justices is tional States orbit, supreme within its lawful sphere.1 function of the thus derived

Second. Every government being it is follows that instrument every in so far times as its where and at all potential provisions applicable.2 the Con-

Third. is that wherever Hence power given stitution there is a limitation on imposed authority, on such confines action restriction operates upon every within its limits.3 constitutional subject to conceive where Fourth. Consequently impossible conditions are which about to any particular provision brought influence Constitution may controlling applies, frustrated all of the or departments action within Those when government. departments, discharging, rest limits of their duties constitutional power, them, of course deal with committed them may subjects in such a come as cause the dealt with under matter way the control of provisions may have been But this does not conflict previously applicable. stated, doctrine or that the Constitution just presuppose may not be at the election of may applicable any agency government. The Constitution has conferred on Con- undoubtedly Fifth. create

gress such as it municipal organizations may deem best for all the territories of the United whether States have been incorporated not, to the inhabitants give the local respects such governments degree representation be conducive to such public well-being, deprive 1 Marbury Madison, Cranch, 187, 1 seq. v. ; Hunter, v. 176 Martin 1 et. 304, 326; States, Wheat. 736; Geofroy New Orleans v. v. United 10 Pet. Riggs, 258, 266; Gettysburg 133 U. S. Railway, v. States Electric 160 668, 679, U. S. cases cited. 2 City Panama, 453, 460; Fong 101 Ting U. S. Yue v. United 698, 716, 149 U. S. 738. 3 Monongahela Navigation Company 312, 336; v. United U. S. Brimson, Interstate 447, 479; Commerce Commission v. 154 U. S. Association, Joint S. 171 U. Traffic VOL. CLXXXII-19 TERM, 1900. *38 White, McKenna, concurring. Shiras and

Justices of if it is considered territority representative government just to do and to such so, local at change discretion.1 governments

The plentitude power stated is con- Congress just ceded both this sides to It has been controversy. manifest from the earliest and so are afforded of days many examples that refer to them seems there is an superfluous. However, which instance the exercise of the exemplifies power substantially its an in such forms, that reference is made to apt way it. The instance to is referred District which Columbia, has had from the different forms of beginning conferred government some upon Congress, others largely representative, only so, at the until, partially present time, of the District people under a live local devoid of local government totally represent- in the elective ation, administered sense, officers solely by ap- in which pointed President, the District has Congress, no effect, local representative acting legislature.

In some cases at dis adjudged govern power locally cretion has been declared to an arise as incident to the right others it In has been rested the clause territory. acquire 3, IV, Article which vests Constitution, section Con of and make all needful rules dispose power gress or other regulations respecting property But if not conflict States.2 divergence, United that the does not authority Congress govern opinion, imply since in either Constitution, the territories is outside case is founded on the referred to although different that instrument. provisions is limitation on

Whilst, therefore, there no implied express local to create exercising governments Shively Bowlby, Kagama, 378; 152 375, v. v. U. S. 1 United States 118 U. S. 1, 48. 2 Pitot, Cranch, Maryland, 316, 332, 4 336; v. 6 v. Wheat. Sere McCulloch 421; Gratiot, Canter, 511, 542; v. American Ins. Co. 1 v. Pet. Engle 537; 526, 393, 448; Sandford, v. Clinton v. 14 Pet. Bred 19 How. Scott 93; brecht, 434, 447; 73, Dillin, 21 Bank 13 Wall. Hamilton v. Wall. National County City Panama, Yankton, 129, 132; 101 v. 101 U. S. U. S. Ramsey, Murphy 44; Kagama, 453, 457; 15, v. 114 v. U. S. United States Boyd 380; 1, 42; 118 Church v. 136 U. S. U. S. Mormon Thayer, U. S. v. BIDWELL. McKenna, concurring. White, Shikas Justices is which restrained territories, body and all not it does follow that of discretion, widest latitude from the inherent, although unexpressed, principles not there may which cannot be of all free the basis which But this suggest transcended. does with impunity Constitution applicable limitation every express in cases where there that even has not force, signifies there applies, no direct command fundamental nature of so restrictions nevertheless be ndt so many expressed cannot be although transgressed, words Constitution. territories is subject As

Sixth. governing *39 of the Con limitations the the results Constitution, this in exercising which are stitution applicable Congress It fol on this subject. limit authority power necessarily is which Constitution lows also that every provision To therein. territories is controlling the also applicable criti a from departure elementary principle by justify cism of the of Mr. in v. Chief Justice Scott Taney opinion 19 How. to me to be Sandford, appears unwarranted. Whatever be the view entertained of the correctness' of in that the court in case, so opinion far as it interpreted - Constitution particular provision slavery concerning and decided that as construed so it was in force in the territo this in no affects the ries, which way that decision principle announced, that the applicable provisions were That doctrine in operative. was concurred dis as the judges, senting demonstrate. Thus following excerpts Mr. Justice in McLean, the course of his opinion, dissenting (19 said, How. 542): “ In of a is organizing territory, Congress limited to means to the attainment of the consti- appropriate tutional No can be exercised which are object. powers pro- hibited to its Constitution, contrary spirit.” Mormon Church United 136 U. S. TERM, 1900. White, McKenna, concurring.

Justices Shiras Mr. Justice in said him, also the dissent Curtis, expressed (p.614): " If, this clause then, does contain a legislate respect power what are of that ? the limits ing territory, power " To this I answer all the common with other that, legis lative finds limits powers Congress, express prohibi tions on not to certain do the exercise Congress that, things; cannot an ex legislative power, Congress post pass facto law bill of and so in other attainder; to each respect contained in the Constitution.” prohibitions Seventh. In the case of in- other territories, every when a stance, invoked, the Constitution provision which arises is, not whether the question Constitution is opera- for that tive, but whether the relied on self-evident, provision is applicable. As

Eighth. derives its local taxes Congress levy authority for local within the not from the purposes territories, general tax as it fol- grant expressed that its tax is not to be measured lows locally “ To and collect Du- Taxes, lay empowering provision and is not restrained Excises,” ties, Imposts require- ment of United States. But the uniformity throughout well referred as the of uniform- to, power just qualification restrains an imposing impost duty ity, goods from a into has been coming States. into and forms This a.part *40 incorporated results because the of the Constitution does clause question not confer an such duty Congress power impose impost on from one States to another United goods coming part and such would be thereof, besides duty repugnant the United States.1 requirement uniformity throughout To above stated on that assumption question principle on this Marshall in Mr. Chief Justice rulings subject v. seems to me to be en- Blake were mere Loughborough dicta, if inadmissible. such view was And, besides, tirely justified, 1 Loughborough 317, 322; 5 8 Wheat. Wall. v. Woodruff Blake, v. Parham, Houston, States, 123, 133; Brown v. Fairbank v. United 628; 114 U. S. 181 U. S. 283. 293 B1DWELL. v. concurring. McKenna, White, Shibas

Justices in Wood decision in the find still support would the principle was affirmed in this decision, regard, that Parham, v. ruff by and Fairbank v. United v. Houston in Brown this court States, supra. follows these conceded propositions

From to act within was empowered Pico for Porto legislating limitations, to its applicable and subject the Constitution to a Constitution applied that every provision in Porto island, potential situated as was country Rico. provision of what particular

And the determination in- all cases, speaking, applicable, generally and its re- the territory an into the volves situation inquiry some illustrated by is well This lations to the States. cited margin.1 court which the decisions out that, growing hand one Some of these decisions hold territorial nature of a govern- presumably ephemeral to the life ten- of the Constitution ment, provisions relating ure of to courts created by judges Congress, inapplicable even territories which are into the United incorporated and some on the hand decide that States, other the provisions to common-law found in the Constitution juries are applicable under like is to conditions; say, judge pre- although tenure, over need not have constitutional siding jury yet must be in accordance And jury Constitution. the Constitution application provision relating has been also case juries considered a different aspect, noted in the being margin.2 involved was of the statutes question constitutionality

of the United States on ministers and consuls conferring power 1 Canter, 511; Porter, American 1 v. 9 Insurance Co. v. Pet. Benner How. 235; Reid, 437, 460; Englebrecht, v. Webster 11 How. v. 13 Wall. Clinton Reynolds 434; 145; Wilson, v. United U. S. 98 U. S. Cullen v. 127 540; Springville Thomas, 174; McAllister v. 141 v. 166 U. S. 707; Ross, Utah, 343; U. S. 548; Thompson Bauman v. U. S. U. S. 170 167 Capital Jackson, Hof, 1; Traction Co. v. U. S. 174 U. S. Black v. 363. Ross, In re 453, 461, 462, 140 U. S. *41 TERM, White, McKenna, concurring.

Justices Shiras and to American citizens for crimes in certain try committed foreign countries. Rev. Stat. secs. 4083-4086. The court held the pro- visions to be to the question repugnant Constitution, conviction for that a without a indictment felony previous or the of a grand jury, summoning was valid. petty jury, It was decided that the provisions Constitution relat- to were ing grand petty juries to consular inapplicable their courts exercising jurisdiction certain countries foreign But the United States. this did not that the import govern- ment United States in creating jurisdic- conferring tion on consuls and ministers acted outside of the Constitution, it was since held expressly that the call such courts power into and to being confer them the in the for- try, countries eign question, American citizens wasdeducible from treaty-making conferred The power the Constitution. court said (p. 463): vested in our extends treaty-making power government all proper with subjects negotiation foreign governments.

It can, the former or any equally- present governments make treaties for the exercise of Europe, providing judicial in other countries officers reside authority appointed therein.”

In other case concerned not of a words, question power outside the whether certain simply provisions were exercised applicable authority under the which the case circumstances presented. as a of a

Albeit, the status rule, general particular territory has be taken in view when the applicability any provision of the Constitution is it does not follow when questioned, Constitution has all withheld from the absolutely on a that such an given subject, necessary. inquiry there are in the Constitution Undoubtedly, general prohibitions in favor of the are not of the citizen which property libert}^ mere as to the form and in which a conceded manner regulations but which are denial of exercised, an absolute power may under to do authority circumstances conditions par- ticular acts. In nature of limitations this char- things, v. BID WELL. *42 McKenna, concurring. White, Shiras and

Justices because transcended, circumstances be under any acter cannot absence power the complete two exists between the characters of which The distinction and those which granted power those restrictions, regulate in ef- on a has subject, all authority particular which withdraw those who most even strenuously conceded, by fect been always the did Constitution on erroneous insisted principle and territories, for was not in legislating apply Congress had more No one broadly in such districts of country. operative Indeed, Mr. Webster. support asserted this than principle of that illus- which that receives from expressions proposition and it, to sustain yet trious man relied have been mainly upon such prin- there can be no doubt even whilst insisting that, those pro- it was Mr. Webster that positive conceded by ciple, on a all power hibitions of the Constitution which withhold His views were particular subject always applicable. as to existence his concession principal proposition took which shown a debate place qualification clearly in the on an amendment offered 24, 1849, Senate February Mr. Walker and certain laws of Constitution extending the United and New Mr. Web- States over California Mexico. that the did ster, his Constitution not, support conception control ter- generally speaking, legislating ritories or in such said as districts, follows operate (20 Cong. Globe, App. p. 212): President, Mr. it is of that we should seek importance have clear ideas correct notions of the this question amendment of member has from Wisconsin presented us; we should seek to some especially conception get of what is meant in a to extend law, proposition, ‘ territories.’ sir, United States Why, world, in'the is All the utterly legislation thing impossible. is no it. There could not form, accomplish general a mat- in such cause for the operation legislative what the Con- ter as it—we extend that. The ? What is States stitution the United law not its first Is very Constitution of the United States? shall its influence and within comprehension principle TERM, 1900. White, McKenna, concurring. Justices Shiras with not represented legislature establishes, debate and the to vote in right both houses right but a Congress, the choice of the partake Presi- dent and Vice President ? And can we extend law these to a rights, them, ? will that it see Everybody altogether impracticable.” Thereupon, following ensued between Mr. colloquy Under- wood and Mr. Webster: ‘ Mr. Underwood: The learned Senator Massachusetts most says, says that the appropriately forcibly, princi- of the Constitution are ples us even while obligatory upon leg- for the territories. That is I true, islating admit, its full- *43 est but if it is force, us while for obligatory upon the legislating territories, that it will not possible equally obligatory the officers upon who to administer the laws in appointed ’ these territories ? “Mr. Webster: £I never said it was obligatory upon them. What I said that in laws for was, these terri-. making, tories it was the of duty those high regard great in the Constitution intended for the of principles security per and for the of sonal security liberty property.’ . . “Mr. . we Underwood: our Suppose provide by ‘ shall be to an office legislation there nobody appointed who the What do Catholic we do an act professes religion. ’ of this sort ?

“Mr. Webster: £We violate Constitution,.which says that no test shall for religious required qualification ” office.’

And this was of the state in the opinion generally prevailing Free Soil and since the resistance those Eepublican parties, to the extension of into the territories, whilst parties slavery in a broad sense on that the Consti- predicated proposition tution was not in the territories, was sus- generally controlling tained reliance the Fifth Amendment by express Constitution from forbidding Congress depriving any person life, without due of law. liberty property process Every those down to and platform adopted by parties including whilst also in effect general doctrine, declared propounding BID 297 WELL. concurring. McKenna, White, and. Shiras

Justices from an excerpt I rule stated. margin append just in 1842.1 of the Free Soil adopted Party platform in almost were in these resolutions embodied The conceptions Liberty in the reiterated platform identical language 1852 and the Free Soil Party in that of in 1843, Party Stanwood, in 1856. Party Republican platform Hist, effect, In and 271. 254 218, 253, of Presidency, pp. made declaration principles in the same was thought repeated Mr. Lincoln when in 1860, convention Party Republican sot therefrom an excerpt as will be seen nominated, out in the margin.2 power withdrawals

The doctrine that those absolute Hist, (Stanwood, Party platform Extract from the Free Soil Presidency, p. 240): “Resolved, of the United That our fathers ordained justice, objects, order, among great to establish States in other national liberty, ex- promote welfare, blessings of general secure created, all consti- pressly government, denied’to Federal power deprive any life, person liberty property tutional without process. legal due “ Resolved, That, judgment convention, has no power ; power more to make a slave than to make a no more king to in- slavery than monarchy. stitute or establish to institute or establish a No specifically among can be found those such conferred the Con- just stitution, by any implication or derived from them. “ Resolved, duty That it is the government the Federal to relieve it- responsibility slavery self from the existence or continuance possesses authority legislate wherever constitutional *44 subject, responsible and is thus for its existence. “ Resolved, judgment That the true and in the of this convention the preventing slavery means of territory safe the extension of into now free is prohibit in its existence all such Congress.” an act of 2Excerpt platform from Republican declarations made in the Hist, Party 293): (Stanwood, Presidency, p. in 1860 That the normal condition of all “8. the of the United States freedom; republican fathers, they that as our is that of when had abolished slavery territory, person in all national our ordained that no should be de- life, liberty property prived process law, or without due it becomes duty, by legislation, legislation necessary, whenever such our is to main- provision against attempts it; tain this Constitution all to violate deny authority Congress, legislature any and we of a territorial or of give legal slavery any territory existence to in individual of the United States.” TERM, White, McKenna, concurring.

Justices Shibas and has in made favor of human are liberty appli cable to condition or status has been out every clearly pointed this court Island Hock &c. Chicago, McGlinn, Railway 114 U. S. 542, Field,, (1885) where, Mr. Justice speaking through the court said 546): (p. “ It is a rule of law, general and acted public recognized upon whenever and political jurisdiction oyer legislative .are transferred one any territory nation or to another, the laws of the sovereign country municipal —that laws which are is, intended for the protection private in force until rights or abrogated changed by —continue new or government sovereign. cession By public property from one passes other, government private property remains before, and itwith those laws which are municipal to secure its designed use As a matter peaceful enjoyment. course, ordinances, and laws, conflict with regulations political character, institutions, constitution of the new are at once Thus, cession of displaced. government po litical the latter in jurisdiction legislative power—and volved in the former—to laws an established country support religion, abridging cruel freedom of the and unusual authorizing press, punish at would once cease to be of ments,-and like, obligatory force without to that declaration and the effect; laws of on other would country necessarily subjects superseded laws of the new the same matters. existing government upon But with to other laws use and respect affecting possession, transfer of secure order and property, designed good health community, promote peace prosperity, of a rule strictly character, municipal general that a leaves them in force until, di change rect action of new are altered of government, repealed. Amer. Ins. Co.v. 1 Pet. Int. Canter, 542; Law, Halleck, chap. 14.” § no

There is reason then room this case to contend that can liberties Porto Pico destroy people in their freedom and by exercising powers against regard jus which the has tice denied. There can absolutely *45 v. BIDWELL White, McKenna, concurring. Shieas

Justices to to locally be no as Congress controversy right also decide and island of Porto Pico wisdom may govern to accord such govern in so only degree representative doing can also There on ment as determined body. may local to such as to authority levy no contention Congress the amount it even choose, taxes Porto Pico although more, than onerous be manifold burden so levied local Put as duty is concerned. this case is with which duty it in the United since was levied was not a local tax, quest:on that if that it from Porto follows Pico, States on coming goods was island was a States, duty repugnant United part an duty to the impost since levy authority as have does I not, on conferred the Constitution Congress, com a burden include the such conceded, goods lay be And, from States. one another of the United ing part exaction if Pico was a of the United States Porto sides, part clause. uniformity repugnant not has then, whether issue, The sole Congress whether the tax taxed Pico without Porto representation for,— it could have been national, was local imposed, although local and was Porto had no Pico representative government whether the is, particular represented —but was levied in such form as to cause it to be tax question to the Constitution. This is to be an- repugnant resolved Had Porto at the time of the Pico, pas- swering inquiry, act in been into become incorporated sage question, ? an United integral part On the one Porto hand, affirmed Pico that, although ceded States, had been with United Spain the cession was such conditions as accompanied by prevented from that island an part becoming integral at until had determined. so least, temporarily, the fact cession On the other is insisted hand, conditions found the United States alone, irrespective became a Porto Pico treaty, It is the Con- into. it. and was incorporated incompatible it is for the United States stitution, argued, without a cession of country accept foreign OCTOBER TERM,, *46 White, McKenna, concurring. Justices Shiras and as an immediate complete incorporation result, following therefore it is contended that it is immaterial to what inquire were the conditions of the if there cession, since were any which were intended to were re- prevent incorporation they to the Constitution and void. The pugnant result the argu- ment is the Government United States absolutely without to and hold power or as acquire territory property to the United appurtenant States. These conten- conflicting tions are asserted to be- sanctioned by adjudications many this court and various acts of the by executive and legislative branches both in re- government; sides, instances, many to the same to ferring decisions and the like acts, deducing conclusions from contrary them. From this it comes pass that will be the authorities relied impossible weigh without ascertaining to which subject-matter refer, order determine their influence. For this reason, proper discussion of the I orderly consider controversy, propose from the as matter of subject itself, first im- from that his pression, instrument as illustrated by lory and as decisions construed by previous government, this court. if carried will out, By process, accurately solution of will follow that the true be question ascertained, both and the result, besides, will deductively inductively, be adequately proven.

It be doubted may that-by general principles which is within law nations government sovereign every an of action inherent attribute sphere possesses power or territory by discovery, by agreement treaty, acquire by It cannot also be that as a rule general conquest. gainsaid wherever as a result of acquires any government the modes above the relation of the stated, new’ is to be determined by acquiring absence of These stipulations upon subject. general princi- of the law of nations are thus stated Halleck his ples by treatise on International 126 Law, : page or A state- domain in various may acquire property ways; its title mere acquired may originally'by occupancy, confirmed from the arising lapse time; presumption bv v. WELL. BID McKenna, concurring. White, Shiras

Justices or con- by and lawful conquest, possession; or discovery by cession, consent; grant, or tacit purchase firmed modes which recognized fine, any exchange; It is not ob- individuals. our acquired property private of these several modes discussion into to enter any general ject than further necessary distinguish acquisition, which are the of property pecu- of certain rights the character Elm. Int. Wheaton, of international jurisprudence. liar objects on Int. Phillimore vol. Law, 1, 1, 4, 5; ch. secs. 2, 4, Law, pt. ac. Pac. lib. Yat- 2, 4; Bel. cap. de Jur. 221-217; secs. Grotius, Institutes, 11; Rutherford, liv. chs. Droit des Gens, 2, tel, Nat. et Gent. lib. 4, de Jur. Puffendorf, ch. 9; b. ch. b. 3; *47 9 Precis ; Martens, b. 5, Yersuch, etc., cap. 6; Moser, chs. 4, 5, Droit des Gens, Gens, Schmaltz, et 35, sec du Droit des seq.; 126; Heffter, 125, des secs. Gens, Droit liv. ch. 4, 1; Iiluber, International, Domaine Ortolan, sec. International, 76; Droit Bello, ch. 28, Public Law, Universal sec. et 53, seq.; Bowyer, Derecho Pub. 1, 4; Internacional, Riquelme, Derecho pt. cap. des Droit de la Nat. et 1, 2; lib. tit. 1, Int. cap. Burlamaqui, ch. tome 5.” 4, 3, Gens, pt. Halleck 76, of a says (pp. change sovereignty,

Speaking 814): 23. The of a state be lost Ill, Ch. Sec. may sovereignty It a various ways. may vanquished by foreign power, or into the state as « become province incorporated conquering its unite itself as one of voluntarily component parts; may as a in such a existence with another way independent will cease.” state entirely nation be subdued and Sec. 3. If the hostile XXXIII, Ch. a arises as to the manner entire state question conquered, it without treat just

which transgressing conqueror re- If he established simply rights conquest. bounds on the and, submission former peo- sovereign, places can State, the laws of they them according governs ple, them if he have no cause Again, incorporates complaint. to them the states, his former rights, privileges giving all that is due own he does them his immunities subjects, TERM, 1900. McKenna, White, concurring. Shibas and Justices a humane and to his foes. equitable vanquished conqueror if the But a restless he conquered fierce, people, savage of their them according degree may, indocility, govern ‘ with a so toas curb their and to rein, tighter impetuosity, keep them under Moreover, subjection.’ rights may, conquest (cid:127) in certain him in cases, tribute other bur- justify imposing either a then, for the or as a compensation' war expenses for the he has suffered from them. . . . punishment injustice Droit -Yattel, des Gens, 3,-ch. liv. 13, Curtis, §201; History, liv. etc.*, 7, 8; Grotius, de Jur. Bel. ac. Pac. lib. cap. 3, 8, caps. Jur. 15; Nat, dé Puffendorf, lib, et Gent., 8, 6, 24; Real, cap. § du Science ch. Gouvernement, 2, tome 5; Heffter, Droit § International, 124; etc., 86.” Abegg, Hntersuchungen, p. §

In American Ins. Co. Canter, Pet. doc- general trine was thus in the delivered summarized, Mr. opinion Justice Chief Marshall (p. 542): “ If it be ceded (conquered territory) treaty, acqui- sition and the ceded becomes confirmed, the nation which it is either annexed, on the terms stipulated or on new cession, such as its master shall im- pose..”

“Whenour forefathers threw off their to Great Bri- allegiance republican tain and established a government, assuredly they deemed that the nation called into was en- being dowed with those general powers to’acquire territory *48 in virtue of their independent governments sovereignty eüjoyed. This is demonstrated the of the Dec- concluding paragraph laration of which reads as follows: Independence,

“As free independent States, States of they [the have full conclude war, contract power levy peace, America] establish and to other alliances, commerce, do all acts and things do.” independent may right That under the confederation was considered that the gov- ernment the United States had authority acquire like other is the elev- sovereignty, clearly established by enth the articles confederation. (cid:127) The decisions of this court leave no room for that, question under the the the government United States,

DOWNES v. BID WELL. 303 White, McKenna, concurring. Shiras and Justices of its within the of its in virtue supreme sovereignty, sphere has the full right territory enjoyed delegated power, acquire nation. other sovereign by every v. 1 American Insurance Co. Pet. Canter, 511, court, In said Marshall, Mr. Chief Justice The Constitution (p. 542): of the Union,

confers absolutely powers and of treaties; war, making gov- making consequently, either ernment possesses territory, power acquiring conquest by treaty.” In 16 Wall. United States v. Huckabee, court, (1872) u said Mr. Power Clifford, Justice through (p. 434):

speaking is vested either acquire territory by conquest the Constitution States. Conquered territory, however, held as a mere until usually military occupation the fate of the nation from is determined, which it is conquered if but the nation or in case subdued, destroyed entirely and ceases to exist, becomes occupation permanent, and the title vests absolutely American Ins. conqueror. Co. v. 1 Canter, Pet. 511; Hogsheads v. 9 Sugar Boyle, Cranch, Shanks 195; v. 3 Pet. Dupont, 246; United 4 States v. Rice, Wheat. 254; The 2 Amy Warwick, 143; Johnson v. Sprague, 8 McIntosh, Wheat. Complete whatever conquest, by mode it carries with it all perfected, rights former in other or, government, words, conqueror, by of his becomes completion the absolute conquest, owner from the property nation or state. His conquered enemy, rights are no limited to mere longer he what has taken occupation into his actual extend to all possession, property rights state, even debts as well conquered including and real personal International Halleck, Law, property. 1 839; Elphinstone Bedreechund, Council Knapp’s Privy Cases, 329; Vattel, Phillimore’s 365; International 505.” Law,

In Mormon Church v. United Mr. U. S. (1889) Justice declared court, Bradley, announcing opinion “ The other than the terri- (p. 42): power acquire territory, northwest of the Ohio tory River, Uni- (which belonged ted States at the is derived from adoption Constitution,) and the treaty-making declare power carry *49 TERM, White, McKenna, concurring. Shiras and

Justices incidents of on war. The these are those of national powers to all belong independent The sovereignty, governments. make acquisitions territory by by conquest, treaty cession is an incident of national by sovereignty. Louisiana, when Territory from and the acquired France, territories west Rocky Mountains, when acquired became absolute Mexico, and domain of the property to such States, subject conditions as the in its government, had negotiations, seen fit to diplomatic to the accept relating then people rights those territories.” inhabiting Indeed, it superfluous to cite authorities establishing of the government of the United States to terri- acquire in view of the tory, possession Northwest when Territory the Constitution was framed and the cessions to the general by various States government subsequent adoption and in view also vast extension of the of the United States about since the existence brought form by substantially every acquisition known to the law in at Thus, nations. least, title of the United was founded dis- Oregon original settlement of citizens of actual covery authorized or approved by S.

States.” 152 U. 50. The Province of Shively Bowlby, Louisiana ceded was France Floridas 1803; the were transferred Texas 1819; was admitted into the by Spain Union in 1845 ; California New compact Mexico were with Mexico of 1848, acquired treaty other western from Mexico treaty'of 1853; numerous islands have been within the dominion of brought the United States under the act of authority 18; August 1856, c. 164, Guano Islands usually designated act, i’e- enacted Statutes, 5570-5578; Revised sections was Alaska ceded Russia in 1867; Island, western end of Medway the Hawaiian 1200 miles from Honolulu, was group, acquired $50,000 efforts to it a make naval expended on the station; renewal of a with Hawaii, November 1887,'Pearl Harbor was leased for station; naval permanent resolution of the Hawaiian by joint Islands came un- *50 v. BID 305 WELL. McKenna, White, concurring. Shibas and Justices and of the States in on der United 1898; sovereignty an act for the of Hawaii was 30, 1900, April ap- which the Hawaiian were the status Islands proved, by given of an on there was 21, 1890, territory; May pro- incorporated an claimed the President concluded and signed agreement, with and Great for the administration Britain, Germany joint of the Samoan 26 16, Stat. Islands, 1497; and, February a 1900, Stat. there was convention between 67, proclaimed and Great which Ger- States, Germany Britain, by and in of the United States Great Britain renounced favor many their of and over in the Island claims rights respect of Tutuilla all other east islands Samoan group longi- tude of Greenwich. And treaty 171° west finally ratified. which terminated the recent war was Spain It is administration remark worthy that, beginning above Jefferson, President acquisitions foreign referred to were whilst that was made largely political party announced, tenet, fundamental power, duty and it true strictly construing Constitution, to say all shades of have admitted the to ac- political opinion power and lent their aid to its And quire accomplishment. power has been asserted in instances where it has not -been exercised. Thus, the administration of during President Pierce, draft for the annexation treaty Hawaii was agreed upon, but, to the death of the owing of the Hawaiian King Islands, executed. The second article of the proposed as follows provided Doc. 55th 2d (Ex. Senate, sess., Congress, No. 681, Calendar No. Report 91): p. II. Article

“ The of the Hawaiian Islands Kingdom shall.be incorporated into the American Union as a State, the same enjoying degree as other and admitted as such as sovereignty soon as it can done with the consistency principles require- ments the Federal to all the rights, privüeges and immunities of a State as on a aforesaid, perfect equality with the other the Union.”

It is insisted, however, that, conceding right gov-

vol. clxxxii — 20 TERM, White,

Justices Shibas McKenna, concurring. of the United ernment States to as all acquire such territory, when becomes acquired into absolutely incorporated every provision Constitution which would under that situation is apply such controlling acquired This, however, but territory. to admit the acquire its beneficial immediately deny existence. general principle law nations, already stated, is that acquired territory, absence of agreement will bear such relation contrary, to the acquiring government determined. To concede to the government States the of all acquire strip *51 to protect'the its own citizens and to birthright pro for the vide of the such well-being enact territory acquired as ments its view of may condition be essential, is, effect, that the United States is say of na helpless family 'and tions, does not at all possess which has times authority (cid:127) been treated anas incident of the Let me right acquire. illustrate the of this statement. accuracy Take a case of dis Citizens of United covery. -the States discover an unknown with an uncivilized rich race, and island, soil, peopled yet United valuable to the States commercial and rea strategic the law of nations, the such sons. Clearly, right ratify thus to would acquire territory and acquisition pertain States. McIntosh, United Johnson v. 8 government v. 543, Wheat. 595 Martin 16 Pet. ; Waddell, 367, 409; Jones S. 202, U. v. States, 212; v. 137 152 Shively Bowlby, United 50. be denied that such could not be U. S. Can 1, prac if the would be to exercised result endow inhabitants tically States and to them United not citizenship subject to an of national to local but also taxes, equal proportion ruin would be to entail on even although consequence and to inflict on the discovered detriment United territory grave from the fiscal arise both dislocation of its and system immediate bestowal on those unfit citizenship absolutely to receive ? has been otherwise. As practice government as 1856 enacted Guano Islands act, hereto-

early section 1, fore referred when to, which, that, provided any v. BID WELL. 307 McKenna, concurring. White, and Shiras Justices discover a States shall guano deposit citizen the lawful or within jurisdiction rock island, any key, the citizens not occupied by other any government, n shall take possession other peaceable government, rock or at the said same, island, may, key thereof, occupy be considered the United discretion of President 164; c. States.” Stat. the United appertaining'to B,ev. stated it was referred to, Stat. Under the act § Amer- holds and now protects argument, government islands. The ican citizens in the some seventy occupation statute under came consideration Jones U. or not the act was S. where the was whether question valid and it was a lawful exercise decided the act ” and that islands thus were power, acquired appurtenant States. The in the course of court, opinion, Mr. Justice said speaking through Gray, (p. 212): “ law do By civilized nations, states, recognized by minion of new oc by discovery acquired as well as or cession and when cupation, citizens conquest; or of one in its subjects nation, name, authority with its take and assent, hold actual, continuous and useful pos session, for the on a (although only purpose carrying partic ular business, such fish catching curing working mines,) other or its unoccupied by any *52 citizens, the nation to which exercise such they belong may ju risdiction and for such as it fit sees over so ac period territory This quired. affords for warrant principle ample legisla tion Congress Yattel, islands. lib. guano 1, concerning chap. 18 ; Wheaton on International Law 161, 165,176, (8th ed.), §§ note 104; 15; Halleck on International Law, 6, 7, chap. §§ 1 Phillimore on International Law (3d 227, 229, 230, ed.), §§ 242 1- ; Droit Calvo, International (4th 266, 277, 300; ed.), §§ Whiton v. Ins. Albany 31.” County Co., Mass. 24,

And these considerations concerning discovery equally applicable from A ownership war resulting just conquest. declared and in its prosecution territory enemy invaded and Would if occupied. war, even suc- waged cessfully, with if fraught the effect was danger occupation TERM, 1900. McKenna, concurring. White, Shiras

Justices into the an alien and hostile people to .necessarily incorporate at the ter- illustration. ? Take another Suppose United States had been overthrown of war the hostile mination government thereof was occupied entire territory portion with to treat and there was no the United government it became to cede and thus necessary or none by treaty, willing an in- for to hold the country for the States conquered deemed or at least until such time as definite period, it was because apt it should be either released of retained that If was to into the United States. holding for incorporation it, not the exer- would the effect which is now claimed for have be so retention fraught cise respecting judgment not be it could to the American safely people danger exercised ? consequence the United

Yet, again. Suppose its to move was citizens, obliged perpetrated upon outrages it came to redress, pass armies or send its fleets obtain culminated occupa- that an war resulted expensive of the enemy, of a tion portion illustrated-by examples event of such territory retention —an to recover the States alone enable in history —could further that to do And had suppose buffered. loss pecuniary for an indefinite dependent period, would occupation so require in- made of required or not whether payment upon must” necessarily true that incorporation It demnity. being that the it would result the territory, the retention follow for the itself recouping abandon must hope the whole burden hence, war, and, suffered by unjust loss This of the United States. entailed people would be if the United States because be a necessary,consequence, would needed-indemnity the territory security not hold did other hand if and on such not collect indemnity, it could uni- follow holding must incorporation the assess- would the Constitution prevent provision formity the newly the war acquired cost of solely upon ment the traditions case discovery, this, In .the country. demonstrate unsoundness and practices declared May contention. Congress, *53 v. BID 309 WELL. White, McKenna, concurring. and Shuras Justices In the with Mexico. summer existed year war New were subdued the American arms and California by Mexico and until which followed continued after the the military occupation in 1848. Mexican ratified, was Tampico, May, treaty peace our forces on 15, 1846, November was by occupied port, the ratification. until after In was not surrendered possession Polk, President Secretary 1847 through spring of duties a tariff on imports tonnage prepared Treasury, in the 1 Senate in country. was force conquered put 30th 569. Documents, Session, pp. Congress, By First this merchandise tariff, dtoties were land as well on exported States, as from as to countries, other except from supplies an for our from 10,1847, exemption army, May chartered duties accorded to all was vessels tonnage States to United convey supplies descriptions Ib. our laden with army supplies.” navy, actually An debate the constitutionality interesting respecting action of Globe, the President contained 18 First Cong. 30th at Session, 48U489, 495, 498, 478, 479, etc. Congress, pp. In v. How. held 603, was revenue Fleming Page, officials treated as a properly Tampico foreign port country forces of the United during occupation military States, and that duties on into the United States from imports Tampico were levied under the tariff act lawfully of 1846. general Thus, was although Tampico possession and the court held that in an expressly international sense the was a port yet decided that, the sense the revenue was a for laws, Tampico The tariff eign country. act special President promulgated Polk was force New Mexico and until after California no tice was received ratification of In treaty peace. Cross Harrison, How. 164, certain collections of impost duties on goods countries into California brought foreign to the time official prior when notification had been received in California cession had been as well as ratified, impost duties levied after the of such were called notice, receipt collected question. duties of notice prior receipt were laid at the rate fixed tariff the Presi- promulgated *54 TERM, McKenna, concurring. White, Shibas

Justices laid after notification conformed to those the the dent; general the decided tariff laws of United States. The court that all The the duties collected were valid. court in the undoubtedly of its said that the ratification course immediately upon opinion of the California became a United States treaty the its revenue laws. subject However, opinion pointedly a letter of the referred to Secretary Treasury directing the laws enforcement the tariff the upon that had enacted laws expressground recognized the the cession. decision was Besides, treaty expressly placed in stated, the conditions of the and it was so treaty, many a different rule would been that have had the words, applied been of a different character. stipulations treaty But, it is all the instances referred to argued, previously may illustrate rule inter conceded, but the arma silent they after the Hence, do not acts done cessation leges. apply a of hostilities when been has concluded. This treaty peace not the but also embodies A fallacy. case only begs question, has it been amake supposed was impossible the hostile because disappearance gov- unwillingness and, therefore, occupation necessarily continued, ernment, lies ceased. The war'had fallacy actual admitting although if it exerted is the mil- to exercise power, it wherever the civil denying arm of itary government, make conditions in to more comes regulate power and. pur free institutions. it can Why accord with spirit the Constitution arm of under military although thought, creature of is such effect Congress, government without arm exercise violating may I fail com- regulate, yet creator — —the prehend. is however, advanced.

This further Granting argument, where the mili- without regulate Congress may incorporating, has taken where arm territory, tary possession foreign or can be no this does not concern there has been treaty, there is no case, of this here involved decision since regulation cession to the United States of but an actual treaty. law of which the rule nations, acquiring general gil

DOWNÉS BIDWELL. McKenna, concurring.. White, Justices Shiras and fixes the status territory, urged, government acquired does not because apply government it is with the that that incompatible de- should hold and administer as a under a cession I claim, without its This pendency becoming incorporated. have rests on the erroneous said, previously assumption of those under Constitution is powers stripped which are to national exist- inherent and essential absolutely ence. The al- of this illustrated certainty examples made use of in the cases of and con- ready discovery supposed *55 quest.

If the limited then it is will treaty authority by suggested, be to terminate a successful war terri- impossible acquiring a without treaty, such tory through immediately incorporating into the nitedU States. eliminate the territory me, however, Let of war and case consider the as subserving treaty-making power the evolution of life. national purposes peaceful Suppose a station necessity naval or a station acquiring coaling on an island inhabited with unfit for American people utterly and citizenship totally incapable their bearing proportionate n of the national burden Could such expense. island, under the rule which is now insisted be-taken? upon, Suppose again for an interoceanic in- territory where an' acquisition canal, of land on habited either side is strip essential for the preservation work. Can it be denied that, if the Constitution as to taxation requirements are to im- con tro], be mediately might impossible accom- by treaty the desired ? result plish no

Whilst particular Constitution is provision referred to to sustain is that it argument impossible terri- acquire without and immediate absolute tory by incorporation, that is said of the Constitution excludes the spirit concep- tion property dependencies possessed by are not so which as to be in re- completely incorporated a of the United States; that the spects part which theory upon 'the is Constitution that proceeds confederated independ- no and that ent therefore can be territory which acquired not does statehood, excludes the contemplate acquisition TERM, 1900: White, McKenna, concurring. Shibas

Justices is not to be which treated an in- position States. But this is based tegral part reasoning and not considerations. judicial political Conceding which the Constitution is- conception proceeds no as a rule should be unless the general acquired to be territory may reasonably of state- expected worthy when such determination is to hood, be bestowed biessing is aid wholly can- political question, judiciary not be invoked discretion in order to usurp political save the even real imaginary The Con- dangers. stitution be saved its fundamental limita- may by destroying tions.

Let me to a come,however, consideration of the pow- express ers which conferred the Constitution to un- how show warranted of immediate which principle incorporation, here so insisted on. In so it strenuously is conceded at doing rule of that the true construction is not once to consider one of the Constitution alone, all, and provision contemplate one conceded to limit attribute therefore those qualifications ' from the result other powers naturally granted by whole so that instrument, interpreted by spirit riot the letter Irilleth. Undoubt- vivifies, which. on war and to make treaties carry edly, implies incidents which also exercise of those inhere in ordinarily *56 of the rule of construction view which I Indeed, have them. conferred conceded—that the Constitution powers just to with reference the nature must be^interpreted gov- and be with ernment construed related harmony provisions of the Constitution—it seems to me to conceive that impossible the a mere cession can an treaty-making power incorporate alien into United "without the States the or im- people express of And from this it follow must that plied approval Congress. there can be no for foundation the assertion that where the has inserted conditions which treaty-making power preclude until has acted such incorporation thereto, respect conditions are void and results in thereof. incorporation spite If the can without the con- power treaty-making absolutely, of and if sent that incorporate territory, Congress, power may v. BIDWELL. McKenna, concurring. White, Shiras anil

Justices it follow must that incorporation, conditions not insert against with the Constitution is endowed the power treaty-making of other every most unlimited right, susceptible the destroying our wreck insti- Constitution; is, the of provision of millions inhabi- then be true, If the tutions. proposition without if the can, treaty, of acquired by tants alien territory, States the or United speaking desire consent people and irrevocably incorporated be immediately through Congress, whole structure of the the the govern- into the ment be While thus overthrown. aggrandizing treaty- one the the construction at hand, same making power time minimizes on the in that it other, strips authority to condition any right acquire territory upon would from the evil guard people immediate un- incorporation. then, treaty-making power der this contention, instead func- symmetrical having tions which to it from its nature, becomes distorted belong very —vested to the one hand and right destroy de- of all on the prived power protect other. looked at And, from another of view, the effect of the point asserted is principle to the ex- equally antagonistic, but to the press provisions spirit other if it Thus, be true respects. has treaty-making power authority what of that asserted, becomes branch which is peculiarly representative people of the United what is left of the functions of that under the Constitution ? body For, the House of although Rep- resentatives might unwilling agree incorporation alien it would races, impotent prevent accomplishment, and the provisions express conferring upon Congress power commerce, the regulate to raise revenue—bills which, must in the House of originate Representa- tives—and the authority uniform prescribe naturalization laws would be in effect set at naught by. treaty-making And the power. consequent incorporation—would be result — all future beyond control remedy American people, at since, once and without redress hope change, *57 the incorporation would have been treaty brought about. TERM, White, McKenna, concurring. Justices Shiras of the is at manifest. once The basis inconsistency position the of that the must be to have considered argument been because the exercise incorporated, acquisition presupposes toas fitness for immediate But the judgment incorporation. deduction drawn the is, exercised is although judgment against immediate and this result is the incorporation plainly expressed, conditions are void no because judgment against incorporation. can be called into play.

All confusion and it is indicated, however, above dangers more than con- it be real, since, although argued, imaginary that the ceded has cession treaty-making power right by without the consent of that incorporate Congress,- body may correct the evil itself of the Con- availing provision stitution giving Congress dispose territory other of the United States. This that assumes property there has been absolute incorporation treaty-making power that on one asserts hand, Congress may-deal and-yet if it not been into as had incorporated theo- other words, adopts In argument conflicting States. them both at the same time. ries of the Constitution applies has some of de- unmindful that there am not contrariety I been of the clause on subject empowering cision meaning territories and other property dispose cases article as re- some treating adjudged and others such deriving gen- ferring property In territories. however, view, eral govern grant of the Uni- territories of the relations at the time of the adoption ted States shouldforever remain then the solemn existing pledge I America,” of the United confederacy clause the belief that the resist disposing cannot theory cession to a sovereignty well relates as relinquishment erro- altogether to a mere transfer rights property, neous. It con- of this the inconsistency argument.

Observe again vital is that so hand, incorpo- the one .the siders, question with- cession alien ration that no territory may acquired with incorporation out absolutely endowing *58 BIDWELL. DOWNES McKenna, concurring. White, and Shibas Justices under our because, citizenship, with resulting inhabitants the and its that a territory the assumption of government, system than one title incorporat- other be held by any inhabitants may the evil to avoid And of. yet be to thought is impossible ing this follow from proposi- must accepting consequences the United States is that citizenship tion, argument moment like at to be sold any subject and is fleeting, precarious to newly to acquired is say, protect That other property. to essential degrade in their rights, presumed people of American whole citizenship. body in those been by sometimes which has indulged The reasoning not at all operative that who asserted were that, purchase, territories they acquired has been met to This included the sell. to right buy right its inhabit- and if country purchased proposition it came under into the United ants became incorporated to existed sell and no of the Constitution, the shelter power In to the American citizens. which I conformity principles for me to it is at one and the have admitted same say impossible is an United States time territory integral part pro- tected yet safeguards, privileges, immunities which arise from this situation are so rights their character that mere act of sale ephemeral And, to the destroyed. applying reasoning provi- under to me it seemsindubitable consideration, sions treaty that if the all the ceded treaty Spain incorporated into the resulted that the millions of to people related without were, whom the consent of the Amer- ican and without expressed people by Congress, any hope of made a of our common relief, indissolubly part country. that under the Constitution thought Undoubtedly, and thus to annihilate existed people dispose citizens was of American contrary conceptions rights and Jefferson. entertained of the Constitution Washington of Mr. when Jefferson, In the written Secretary suggestions March, 1792, to President State, Washington reported between the United States negotiations subject proposed intended to be communicated were in- by way Spain, TERM, White, McKenna, Justices concurring. Shikas struetion to the commissioners the United States appointed such managé observed, it was negotiations, discussing as to possibility demanded compensation being by Spain ” ascertainment our the lower right navigate as.follows: Mississippi, “We have else” nothing (than a of certain relinquishment claims on For as to we Spain) give territory, exchange. have neither the nor the to alienate inch of an disposition what our belongs any member of Union. Such a proposition therefore is totally inadmissible, treated for a mo- *59 ment.” Ford’s vol. Writings Jefferson, v, 476. p.

The draft of rough these observations was submitted to Mr. then Hamilton, Secretary Treasury, suggestions, pre- to it to viously the sending some time President, before March 5, and Hamilton made the it: following *60 ceded be formed into such should States territory ultimately ” of And this of the word is the Union. State ab- meaning I have accord what shall hereafter occasion to solutely was demonstrate entertained Mr. Jefferson conception of constituted the what United States.

. from the of a or the calamitous war True, exigency necessity of'a it be boundaries, settlement that citizens may be the action of the United States treaty- expatriated ratified expressly by Congress. making power, impliedly But the of these conditions particular cannot-justify arising anis which territory integral general proposition be as mere act of. sale, States disposed may, United. If to of an American however the incorporated dispose to the mere exertion of the citizens sell territory power TERM, 1900. McKenna, concurring. White, Justices ShikaS'and not relieve the be it would conceded, dilemma. It arguendo, is ever true that is where a malign principle adopted, long is as the error adhered to it must continue to its bale- produce ful no results. if there Certainly, power acquire subject it must there condition, follow is no to dis- authority since cannot that the conditions, mere pose subject of form of the could transaction bestow a which change power the Constitution has not conferred. It would follow then that conditions annexed to a which looked to the disposition of the of the United or to protection enable them people would be safeguard disposal void; and thus it would be that either the hold United States must on abso- or must lutely dispose unconditionally.

A atwill once make the illustration practical consequences clear. should determine that the millions Suppose Congress inhabitants of Islands should not continue Philippine ap- but that to the United should be allowed purtenant to establish an autonomous outside of the Consti- government, tution of the United with such however, con- coupled-, as far for control as essential to ditions providing and to of life .protect property against guarantee foreign If the encroachment. be well proposition incorporation would arise at once the whether the founded, question ability no these since existed, conditions conferred impose which to annex conditions would limit And if it bo that the whether disposition. question is fit for when it is is a immediately incorporation acquired ju- dicial and not a it would follow that the one, legislative validity would within the conditions also come scope judicial and thus the entire authority, policy political be alone controlled judiciary. as to the which the theory treaty-making power upon has been commented rests,

argument just now to be shown, refuted by govern- history proposed ment from the not There has been a cession beginning. single time made from the Confederation up present day, the recent has contained Spain, .with excluding effect that United States Con- stipulations through *61 v.- BIDWELL. McKenna, concurring. White, Shiras Justices the would disincorporate would either incorporate gress condi- There were such into United States. the ceded territory it the when cession conveyed tions in the deed by Yirginia Like conditions United States. Northwest Territory cession North Carolina whereby were attached .to was transferred. now Ohio, Tennessee, south territory in the cession were contained by Georgia Similar provisions of Alabama and the States now territory, Mississippi also were treaty Such expressed agreements Mississippi. the' Floridas, that of of 1803, ceding Louisiana; ceding extent which a and in the of 1848 and‘1853, treaties large also the Alaska to this was ceded country, territory To limitations treaty-making treaty adopt one of now would every insisted upon presuppose was thus superfluous, these conditions sedulously provided obtained, have afforded would since guaranties were not although they expressly provided for. has

When the various been foreign treaties territory are considered in the circumstances which light acquired it mind surrounded becomes to established them, my clearly was deemed devoid that the to be always treaty-making power into the United States authority incorporate assent, without and that no express implied, Congress, even has ever been mooted. To question contrary appreci- in mind to bear what ate this is essential the words United ” at time Constitution. adoption signified with When Great Britain the independ- peace it is States was ence of acknowledged, unquestioned all the within the boundaries defined that treaty, title, have been the substantially whatever may disputes was States. The entire territory particular belonged the native white inhabitants were and all and endowed citizens of the United States rights as has When, from that relation. already arising privileges was ceded by said, Yirginia, been the Northwest Territory inhabitants the rights expressly stipulated of 1787, The ordinance provid- should regard respected. fulfilled for the of the Northwest Territory, ing *62 TERM, 1900. 320 White, McKenna, concurring. Justices Shibas and this on behalf of the Without promise Confederation. under- it the text of taking suffices to reproduce ordinance, say it that contained a bill of a of ultimate rights, statehood, promise it and The said provided (italics that and the mine) territory which States be formed may therein shall ever remain a of fart this the United confederacy States the ar- America, subject of of ticles of confederation, to such and alterations therein shall and constitutionally to all the made, acts and ordinances of States assembled, thereto.” conformably It submitted the inhabitants to a tax to for a their liability pay of the proportional debt and the part public expenses gov- ernment to be assessed the rule of apportionment gov- erned States of the confederation. It forbade slavery within the and contained a that Territory, stipulation pro- visions the ordinance should ever remain unalterable unless consent. by common it

Thus was at that, of the Uni- adoption unit a ted as a and as geographical governmental concep- tion both in international and domestic not sense, consisted but also of all the inhab- territories, native white tiants endowed a being protected, by citizenship, pledges common union, and, all except political advantages, enjoy- freedom, equal rights ing by substantially safeguarded similar all under the to contribute guaranties, being obligation their share for the debt proportionate liquidation future expenses general government. has been ordinance opinion expressed 1787

became of the Con nullity inoperative adoption stitution C. in Scott J., v. 19 (Taney, How. 393, Sandford, 438,) on the while, other has been said that hand, the ordinance of “was most solemn of all and became engagements,” States reason of sixth article, debts contracted and provided entered into, before the this engagements Constitu adoption tion, shall be valid the United States under against as. this Constitution as under the confederation.” Per Baldwin, J., in Lessee Heirs v. Pollard's concurring opinion Kibbe, 14 Pet. 353, 417, Catron, J., in Stra- per dissenting opinion DOWNES v. BIDWELL. White, McKenna, concurring. Shieas

Justices 10 How. be taken Whatever view Graham, der mind refuses to assent difference legal opinion, my that under the Constitution the conclusion provision forever ordinance such Territory making Northwest on the the confederation was binding a part formed. When when the Constitution was of the United re- in mind that tracts of this were it is borne large it is im- soldiers, distribution continental among served believe that was ever considered for me to possible out was to take the Northwest Territory of the cession result *63 have been effect of which would the the Union, necessary of and valor the men who their very suffering to by expatriate it be con- Can of their united the had secured liberty country. the Constitu- the of that North after Carolina-, ceived adoption south cede to. the territory would tion, the general-government those daunt- to of the Ohio River, thereby intending expatriate who had of North Carolina shed lustre mountaineers less arms of the Mountain ? victory the Revolutionary by King’s after the bestowed of And the the rights adoption as I shall were Constitution, demonstrate, proceed utterly with such a theory. incompatible in one of the laws enacted at the first

Beyond early question, the First the of force of the ordinance session Congress, binding and certain of its was the recognized, provisions concerning of in officers the were amended to con- territory appointment 8, the ordinance to the new c. form 7, August Stat. 50. 1789,1 of this it it

In view seems to be doubted that the cannot, me, States continued to be of States and terri- composed all an thereof and tories, forming integral part incorporated the case as was the Constitu- therein, prior adoption in the now embraced the State territory tion. Subsequently, the ceded the United States State of Tennessee was order to in- In insure the native North Carolina. rights that the inhabitants of was habitants, expressly stipulated bene- should all the ceded territory privileges, the enjoy rights, the late set forth in the ordinance of Con- fits advantages for western territory government gress olxxxii — 21 vol. TERM, 1900.

322 McKenna, White, concurring. Shuras Justices condition inserted however, A was, cession States.” no should be made by Congress regulation tending 1790, act of 1 slaves. Stat. By April 2, 106, 6, c. emancipate at was . the same And, cession on accepted. session, May 26, for an act was of this 1790, passed government territory, “of under the the United States designation territory Biver.” south the Ohio Stat. 14. c. This act, except as to the which was found in the Northwest Terri- prohibition ordinance as terms declared that tory slavery, express inhabitants of the should all the conferred enjoy rights that ordinance.

A Mississippi Territory organized c. 7, 1798. Stat. 28. The land April embraced was claimed the State of and her were rights saved Georgia, act. The sixth section thereof provided follows: enacted, And be That and after the Seo. 'further said establishment government, the afore- people be entitled to and shall said territory, enjoy, singular advantages granted rights, privileges people the United States northwest river Ohio, ordinance the thirteenth the aforesaid and by day July, thousand seven hundred and one eighty-seven, 3>'ear a manner same are as full and en- ample possessed *64 of the the said last-mentioned by people joyed territory.” boundaries, Thus defined common by clearly by citizenship, stood the United like States when the guarantees, plan from France the Province of by purchase Louisiana acquiring President Jefferson. conceived by Naturally, sugges- was the tion which arose, power under to incorporate into the United States —a then I Union as composed, have of States stated, and Territories —a province inhabited foreign alien thus make an them people, Amer- partakers Jefferson, ican commonwealth. Mr. doubting power United States to consulted acquire, General Attorney as to the Lincoln treaty right by stipulate incorporation. officer Mr. Jefferson was, By effect, advised that to share the is, incorporate, power im- privileges

DOWNES BIDWELL. White, McKenna, concurring. Shibas Justices of the of the United States with a munities foreign popu- people consent of the of the United lation, people required were that if a of cession it therefore, and was suggested, in the form such it should be made containing agreements put instead of a so as cession, thereby of boundaries a change The letter within United States. the territory bring to Mr. Gallatin, President Jefferson Lincoln was sent Mr. did not Mr. Gallatin agree Treasury. Secretary Mr. Lincoln. suggested propriety expedient he said: in effect so Jeffersqn, stating, In a letter to President exist ? To me constitutional But, really does any objection an as a nation hav.e. it would that the United appear (1) that ac- whenever inherent (2) territory; right acquire in which authorities the same constituted by treaty, quisition constitutional have a right is vested treaty-making power has the territory to sanction the that whenever ; acquisition (3) into been have the either admitting acquired Congress with the State, the Union as a new State or of to a annexing consent of that for the State, making regulations govern- ment of such 1, Gallatin’s vol. etc. 11, territory.” Writings, p.

To letter President Jefferson 1803, replied January, that he there was no what- clearly thought showing question States to ever but that he acquire, did not believe could be for and carried incorporation stipulated into effect without the consent of the of the United people He said (italics States. mine): L.’s as Mr.

“You are proposition: right, my opinion, terri- as to the There is no constitutional acquisition difficulty into the Union he ialcen whether when toryand acquired Constipation it now stands will become question hy not to I be safer enlarge- think will permit expediency. of the Constitution.” amendment ment of the Union vol. 1, Gallatin’s p. Writings, State, then Madison, Secretary exactly

And the viewsof Mr. on March Jefferson, for, of President conformed those who were commissioners negotiating a letter to the he : said treaty, *65 ceded of the hereby territory To the inhabitants incorporate TERM, 1900. White, McKenna, concurring. Shiras Justices a the citizens the United States, which being provision to be cannot now be made, expected character that such of the United States and policy will incorporation take without State place unnecessary delay.” II, 540. Papers, for

Let us a moment accentuate the pause irreconcilable which conflict exists between the interpretation to the given at time of the Louisiana .the Jefferson treaty by and the Madison, instrument import as now insisted You are to said upon. negotiate, commissioners, Madis.on of the obtain cession must not territory, you under any circumstances agree inhabitants incorporate hereby territory ceded iwith the citizens the United States, being which cannot now be made.” Under the provision now theory Mr. Madison should have said: You are to urged, negotiate of the cession of Louisiana to the United territory if deemed by you expedient accomplishing purpose, you for the immediate of the may provide inhabitants incorporation into the United States. This can territory acquired you do because the Constitution United States has con- freely the absolute ferred treaty-making bring all the alien into the United residing acquired territory people with them the States and thus divide rights peculiarly to the citizens United States. it is im- Indeed, belong material make such whether since the effect agreements, you of the Constitution without reference to any agreements you make for that all the alien and its purpose, territory inhabitants will become into instantly incorporated States if the acquired.

Without into details, it sufficesto that a going say compliance with the instructions them have would given prevented on behalf of the negotiators United States from inserting treaty any even to ultimate provision looking incorpo- ration into the United States. In acquired territory view of the how- emergency exigencies negotiations, ever, commissioners were constrained to make such a stipu- lation, and the as follows: treaty provided “ Art. III. The inhabitants of the ceded shall into the Union of the United incorporated admitted *66 BIDWELL. n Justices McKenna, White, concurring. and Shiras of the Federal principles according as soon possible, of all the rights, advantages the enjoyment and in the mean States; of the United of citizens immunities in the free be maintained protected enjoy- shall time they and the which religion they pro- ment their liberty, property fess.” 8 Stat. 202.' it is refute evident they the just quoted, provisions

Weighing from mere force at once the arising the theory incorporation be result directly contrary such of a even treaty, although the lan- contain. Mark may “ which a treaty any provisions the inhabitants of ceded The It a expresses guage. promise: the United the Union into shall he incorporated fulfillment of this the . . .” how States. Observe guardedly is made until its possible accomplishment pledge postponed it is to be executed since the will of the American people, theFederal as soonas according principles only possible this, wise cir- now be true, Constitutions If the view urged I and, indeed, as have was cumspection unnecessary, previously the entire was since said, proviso superfluous, everything the future was assured for immediately unalterably arise.

It is that the for said, Lou- however, treaty purchase took that the isiana ceded would be imme- granted into the United and hence the diately incorporated contained such incor- treaty guarantees related, but was a that was to be ceded territory poration, pledge made a Union as State. The minutest analysis, part fails clauses to disclose refer- however, treaty and hence it can be ence to a statehood, promise only into made referred to incorporation pledges States. This will further when Jeffer- opinions appear son Madison and their acts are reviewed. subject words theory argument proceeds the Union of the United “shall into treaty incorporated statehood, could have referred to States,” only promise were not a Territories since the then incorporated existing of the United as that Union consisted Union part unfounded, of the States. But this has been shown TERM, OCTOTu

hite, McKenna, Shibas and concurring. ” since the Union of the United States was of States composed and Territories, both been embraced haying within the bounda- fixed between peace Great Britain and ries United States which terminated the war, the Revolutionary latter, Territories, districts of embracing country were ceded the States to the United States under the express should forever pledge remain a thereof. That of the Union conception the United States composing of Jefferson and understanding Madison, indeed of all those who participated events which and led preceded *67 to the Louisiana up results from treaty, what I have already and will be said, demonstrated additionally statements to be by n hereafter made. Again, of the is inconsistency argument evident. Thus, whilst the which it premise upon proceeds when foreign territory, becomes at once a acquired, part of the United States, conditions in the despite treaty expressly such excluding endeavors td yet the refu- consequence, escape tation of such which arises from the theory of the history gov- the contention that ernment the territories which were a States were of the United constituents of component part the Union States. I-do not composed under- how has been stand territory foreign acquired by treaty have been can be asserted to into the absolutely incorporated thereof States as a United conditions to the con- part 'despite inserted in the the assertion be made that treaty, yet trary I the territories as have were which, said, United States a and which as the States were ceded them originally part a, condition that should forever so remain express were not a United States, Union com- part part (cid:127) United States. indeed, reduces itself posing argument, that for the this, purpose incorporating, foreign territory into the United States domestic must be disincorpo- rated. In other must at Union least in words, be, the- dismembered for the the doctrine ory, purpose maintaining immediate, of alien incorporation territory. Mr. That Jefferson deemed the re- provision to be to the Constitution is lating incorporation repugnant Whilst he as has been conceded, seen, unquestioned. WELL. BID White,'Shikas concurring. Justices McJCehna, he doubted incorporate acquire, a consent of United States without the people into two he amendment. In proposed constitutional July, to be which he amendment, of a thought ought drafts proposed them to States enable United people submitted which is of these, The first the terms treaty. ratify margin.1 printed dated July, amendment was as follows : and revised The-second France to the is made ceded Louisiana, white be cit- States. Its inhabitants shall on the same as to their stand, rights obligations, izens, citizens of the United analogous with other footing thereof as to that, lying portion Save situations. of Arcana no new River, the mouth the latitude north of land made therein nor be established grants shall State portions to Indians exchange equivalent than other until an of the Constitu- them amendment lands occupied for those be made tion shall purposes. obtained, whensoever also, rightfully

“Florida of the United States. Its white inhabitants become part shall citizens, become shall to their stand, shall thereupon on the same citizens other and obligations, footing rights Writ- situations.” Ford’s of the United analogous *68 vol. 241. Jefferson, of p. ings that Mr. on insisted Jefferson’s conviction the is strenuously

It of the was to the Constitution repugnancy treaty subject proposed of Mr. Jefferson’s amendment to the Constitution. draft First “ incorporated and of Louisiana is with the United States The Province occupancy in rights self-govern The of the part thereof. soil and of made they pro to Indian inhabitants as now then confirmed exist.” It are ment provisions possession and rights relative Indian and other with ceeded lands, forbidding dispose Congress of the lands other of exchange provided further therein without amendment to the Constitu is than wise portion “Except as to thus: thereof which draft closes This tion. 31°, which, expedient, they of latitude whenever deem' south lies separate government, making a territorial either may enact into they river, vesting side the inhabitants the eastern of the one on part with possessed by rights other citizens of the territorial thereof Jefferson, 8, p. Ford, Writings of edited vol. 241. States.” TERM, 1900. 32S White, McKenna, concurring. Justices Shikas based alone he the the fact that thought exceeded treaty limits of the he Constitution, the because deemed that it pro- vided for the to the admission, according of Constitution, the into as a new State the territory acquired Union, the this hence, for he purpose conferring power, drafted the amendment. The contention refuted two considerations; the the because two forms amendment first, which Mr. Jeffer- son did not to confer prepared purport power upon Con- to admit new States; second, gress and, they forbade absolutely from a new State out of a admitting described part without a further amendment to the Constitu- be tion. It cannot conceived that Mr. Jefferson would have drafted an amendment a defect cure which he ex- thought isted and on the amendment yet say nothing subject such defect. And, moreover, cannot be conceived that he drafted an amendment confer a he power supposed under the thus wanting ratify treaty, amendment' withhold yet very terms, as to a express of the ceded which it territory, authority the pur- of the amendment to confer. pose I two letters'from Mr. excerpt margin1 one Jefferson, July Letter to William Dunbar 1803: you you have through will heard Before receive the channel public papers Louisiana France to the United States. ces.sion Intelligencer stated terms as National accurate. That time, necessary I have found it be ratified to convene Con- very important October, and it gress happiness for the 17th possess they country that should all information which can be obtained it, they practicable respecting arrangements make best good necessary government. It obliged is' most because will be to ask people an authorizing amendment the Constitution re- tlieir province ceiving providing government, into the Union and for its power given limitations shall that amendment will be un- authority.” Writings, 8, p. the same alterable Jefferson’s vol. Cary September 7, Letter to Wilson Nicholas of 1803: you I am of the force aware observations make on the given by the Constitution to admit new States into the Union subject restraining then without constituting when States. But I consider the limits of the United States *69 treaty 1783, precisely fixed that expressly Constitution States, help to made for I declares itself United cannot believing BID WELL. White, and'McKENNA, concurring. Shiras Justices William Dunbar, date of to under July written Nicholas, Wilson to 7, 1803, Cary dated other September mind of in the the difficulties which were show clearly which which remove all doubt concerning Jefferson, Mr. which'he wrote and the adoption of the amendment meaning want to cure deemed necessary any supposed he which would be for. the treaty provided concerning power bore in mind the fact show that Mr. Jefferson letters These terms that the Constitution express delegated Congress no further to admit new States, and, therefore, authority power he this was But thought subject required. power within confined to the area embraced the limits of was at the Constitu- States, existing adoption . so as to cause the To fulfill tion. stipulations States, become Mr. ceded territory Jef- amendment to the to be an essen- ferson deemed the amendment which he de- this reason formulated tial. For ceded that apart clared territory stand, inhabitants shall be citizens, and white on the' same their other rights obligations, footing of the United What citizens situations.” analogous words meant is not doubt when it is observed these open but the were words, they paraphrase following contained first amendment which which were proposed wrote: the inhabitants thereof with all Mr. Jefferson Testing territorial citizens the United States,” other rights possessed that it show was the want of which clearly power incorpo- ceded into the as a rate the United States country and to mind, was Mr. Jefferson’s which re- which accomplish permit Congress to admit into the intention was to Union new that the be formed out for which and under should acting. then I authority alone were do not believe it was whose Ireland, Holland, etc., it, they might England, receive into meant your under construction. an instrument be the case When which would safe, constructions, pre- dangerous, the one the other one admits two indefinite, prefer precise. I is safe and I had cise, the other enlargement of from the nation where it is found nec- ask an rather powers a construction which would make our essary than to assume Jefferson, 8, p. Writings of vol. boundless.” *70 330 TERM, White, McKenna,

Justices Shiras concurring. suit he an amendment to the thought Constitution was re- This of the quired. amendment provision of applied the it territory ceded, and, therefore, all into brought States, and hence it in a where placed position the of power to admit new Congress States would have attached it. As Mr. Jefferson deemed that of every the requirement treaty would be fulfilled that would incorporation, be un- wise to form a new State out of the of the new ter- upper part after thus ritory, providing execution complete of treaty by all the incorporation into the States, he inserted a provisionforbidding Congress admit- a new ting State out territory. of of With the debates which on the took place subject treaty I need not concern Some shared particularly Mr. Jef- myself. ferson’s doubts to the to in- power treaty-making the territory into the United States without corporate an amend- of ment others Constitution; deemed that the provision was but a would treaty promise Congress ultimately as a and until the action of territory, incorporate this latter result was about full brought legislation as deemed best was vested in This latter govern Congress. view Mr. Jefferson’s amendment to the proposed prevailed. therefore, never was adopted by Congress, hence was never submitted people.

An act on October Stat. 31, 1803, 245, was “to approved President the United States to enable the take possession territories ceded to United France concluded at Paris the 30th of and for' last, the tem- April thereof.” The of this act were provisions porary government with the that the absolutely conception incompatible into the had been United States virtue of the incorporated November Stat. an 10, 1803,2 245, cession. On act was passed for the issne of stock to raise the funds to for the providing pay 2 Stat-. an act 24, 1804, O.n was February territory. ap- extended certain revenue and other expressly proved On over the ceded 26, 1804, laws 2 Stat. country. March ” act was Province an Louisiana into dividing passed on the south and the District of Louisiana Orleans Territory v. BIDWELL. McKenna, concurring. White, Shiras Justices of Orleans a over the This extended Territory act north. United States and laws pro- number general large For purposes a form government. vided of Indi- Territory was attached Louisiana the District Northwest out Territory. carved had been ana, un- was thus Orleans Territory the area described Although laws many of a territorial government der the and. authority to it, act of extended by been States had requirement thought manifest that Mr. Jefferson *71 into the United the that it be incorporated of should treaty with. States had not been complied Jef-Mr. 11,1801, on July In a letter written to Mr. Madison Writings said cession, (Ford’s of ferson, speaking treaty 313): of vol. Jefferson, 8, p. “ the & Chote against of Girod enclosed reclamations commerce of the Indian to a claims of monopoly Bapstroop article of the the third to be under the of protection supposed to abusive some other' claims as well as convention, Louisiana meet will force usto that The article grants, question. probably caution on has remarkable the of been worded our It that the inhabitants shall be admitted as negotiators. Co'nstitution, of our soon according possible, principles of of mean to rights citizens, and, enjoyment en shall be time, attendant, maintained their liberty, prop- That is, shall continue under the erty religion. of until the of our Constitution treaty, principles protection can be extended to when the them, treaty protection cease, to of our own to But take its place. principles could not as this be done at it has been be as once, provided as our rules will admit. has soon Accordingly, Congress begun about laws title's, their by extending twenty particular the act Louisiana. these is intercourse with Among concerning which establishes commerce with them Indians, system no now That class of therefore are rights admitting monopoly. taken from under the under placed principles our I it will be an laws. imagine necessary opinion express after made Claiborne shall have Governor subject, you one.” up TERM, 1900.

332 White, McKenna, Justices concurring. Shibas In another letter to Mr. date of under Madison, August 15, Mr. 1804, Jefferson said (lb. p. 315): “ I am so much with the impressed expediency putting termination to the France patronize rights which will Louisiana, cease with their complete adoption citizens the United States, that I to see that take hope place on the meeting Congress.”

At session of following on March Congress, 2, 1805, 322, Stat. c. an act was other which, approved, among pur- doubtless poses, was intended to fulfill the hope expressed by Mr. Jefferson in the letter That just act, first quoted. section, provided the inhabitants of the of Or- Territory leans shall he entitled to and all the rights, enjoy privileges secured advantages said ordinance,” the or- hy (that is, dinance of and now 1787,) Mis- hy people enjoyed As will be Territory.” ordinance sissippi remembered, 1787 had been extended to that Stat. c. 28. territorj^. Thus, in accord with the embodied the amend- strictly thought ments Mr. Jefferson, contemplated by citizenship conferred, Orleans was into the United incorporated Territory fulfill the treaty, requirements by placing which it would have had it exactly position occupied *72 been within the boundaries the States as a territory at time was the the Constitution framed. It to re- pertinent call the that contained certain treaty stipulations giving prefer- ences and commercial for stated the ves- period privileges sels of and that French and even after the Spanish subjects, action of stated this condition of above the treaty continued to thus enforced, that even after demonstrating the the con- incorporation territory express provisions which had the for ferring temporary right treaty stipulated and which had were not the ef- recognized destroyed, fect that as to such matter was for the time being incorporation in abeyance. being the Province of Louisiana, upper part designated by

the act of 2 1804, March Stat. c. 26, 283, 38, the District the act of 2 Louisiana, March Stat. c. by 3,1805, 331, 27, Louisiana, as the was created the of Mis- Territory Territory 333 *. BID WELL. DOWNED concurring. McKenna, White, Shibas Justices o 95. latter act, 2 Stat. 743, on June 1812. .this By souri terms extended was not the ordinance of express though to the slavery agitation— over the owing territory probably — were accorded substantially inhabitants of the Northwest Citi- the inhabitants of Territory. rights in the ninth whilst section, was in effect recognized zenship elaborate contained an declaration section fourteenth to the secured territory. people rights resulted construction which analyze Pausing practical the Louisiana domain covered from the of the vast by acquisition that conceded it it was first, results, indubitably purchase, States shade that every opinion terri- hold and undoubted had the govern acquire, into the United aas and that incorporation tory possession, from a could under arise no circumstances solely for the accom- even cession, contained provisions although of such denied second, was result; strenuously plishment could eminent men many territory, citizenship acquiring be conferred within the inhabitants territory; acquired in other could be into words, the territory incorporated the United States without an amendment to the Constitution; that the and, third, which was that, although opinion prevailed treaty might stipulate incorporation citizenship under the such agreements by treaty-making were but for their fulfillment on the promises depending future action of In with this accordance view Congress. Louisiana acquired purchase governed a mere of Mr. until, dependency, conformably suggestion it was action of Jefferson, by the as a Congress incorporated into the United States and the con' same were Territory rights ferred same mode other Territories had pre- been is, viously incorporated, privileges bestowing immunities citizenship rights pertained to the Northwest Territory.

Florida was ceded by treaty signed February Whilst Stat. 252. drafted with the precedent accordance *73 afforded the the Florida was Louisiana, treaty ceding treaty in the modified to meet view phraseology, slightly probably TERM, White, McKenna, Justices Shiras concurring. that under the Constitution had the to deter- when the time was mine to arise. incorporation under Acting afforded the the Louisiana case precedent Congress adopted of a which was inconsistent plan with the wholly that the had been theory territory General Jack- incorporated. son under this was appointed governor exercised a act, de- of in conflict with the gree authority entirely conception the was of the United territory the sense of and that those incorporation, provisions which would been have under that applicable were hypothesis It then force. will serve no useful purpose go through gradations legislation to Florida. Suffice adopted that in Stat. 1822, (3 c. say an act as in 13,)' passed, (cid:127) the case of Missouri, for the presumably same reason, which, whilst not ordi- referring Northwest Territory nance, endowed the inhabitants' with effect such rights gra/nted by ordinance. This it is to also, treaty contained discrimina- remarked, commercial with tory provisions incompatible conception of immediate from the incorporation arising treaty, were executive officers of the enforced by government. The differences which existed at political intensity with outbreak hostilities at the Mexico, termination of the war with that and the around which such country, subject conflicts of centered opinion probably why explains Mexico form peace departed adopted treaties Florida and Louisiana. That previous concerning instead of a cession in the form treaty, expressing previously whether or not I am unable, course, adopted, intentionally resorted to Gen- say, expedient suggested Attorney eral Lincoln to President cession Jefferson, accomplished the boundaries words, the iwo countries other by changing ; within the described bound- bringing acguired aries United States. contained a besides, treaty, in other words, stipulation rights citizenship; provi- in terms sion to those used treaties equivalent previous I have referred. The then which was controversy on the of a subject flagrant slavery prevented passage *74 WELL. BID McKenna, concurring. White, Shibas Justices form a territorial government, California bill giving ad- therefore directly was delay after considerable California of the the ratification After a State. the into mitted Union in effect which enacted by Congress, laws were various treaty the United treated the territory acquired that these acts conceiving of the executive officers government, ratification provisions or an were express implied that the pro- assumption acted upon treaty by Congress, in- and hence made thus operative, were visions of treaty efficacious. had thus become corporation of this from the rule provisions the general Ascertaining received, which execution and the treaty latter practical in the cases seen that the established will precedents certain extent; to a from and Florida were Louisiana departed the treaty, that where to be the rule was considered is, boundaries within terms, brought express for and the States and treaty incorporation, provided recognized was by Congress, pro- expressly impliedly to be immediate effect. But visions treaty given ought conflict with the this did not the law general principles outset nations which I have at the but enforced since stated, it, not that assumed, the action taken was incorporation brought about without the consent treaty-making power wholly that as the for Congress, treaty provided incorpo- had acted without terms, ration express repu- should be at once enforced. it, provisions diating in detail to Without from-Russia referring acquisition it sufficesto also contained Alaska, say treaty provi- and was acted sions accord incorporation upon exactly construction the case of the ac- practical applied from Mexico as stated. However, just quisitions treaty Alaska contained an from ceding express provision excluding the uncivilized and it tribes, native has been nowhere citizefiship that this condition of exclusion contended be- inoperative of the want of under the cause treaty- if, to so which must be the case making authority provide, on the limitation which here asserted, treaty-?naking power, be well founded. adds Alaska, therefore, The treaty concerning TERM, White, McKenna, concurring. Shiras

Justices established act of the by every cogency conception gov- ernment from the foundation—that the condition of a treaty, ratified impliedly by Congress, becomes the expressly when measure rights are arising adjusted.

The demonstration which it seems to me is afforded review which has is besides preceded sustained various other acts to me ex- wholly inexplicable *75 the that it was admitted that theory the cept government of the United States had the and hold power acquire territory without it. for immediately Take, incorporating instance, the simultaneous arid of admission acquisition Texas, was ad- mitted into the Union as a State of resolution by joint Congress of instead To what of under treaty. the Con- grant power can stitution this action be referred, unless be admitted that is vested with the to determine when Congress incorpora- tion arises? It cannot be traced to the on conferred authority to admit new would adopt theory that this the presuppose of con- gave prerogative on statehood But this wholly I have ferring foreign territory. is a mistaken shown it must incidentally conception. Hence, of at be that the action one the same time fulfilled the of this function the so, incorporation; being privilege But I shall not statehood this added. prolong opinion time in the other referring acts occupying many which further refute the correctness of the government proposi- here tions which are insisted and which I have previously without merit. In shown to be concluding my appreciation the the attention is called to the Thir- history to the teenth Amendment which to mind Constitution,, seems my to be conclusive. The first section of the amendment, italics mine, as reads follows: Sec. 1. Neither in- nor being slavery servitude, a for crime, whereof voluntary except punishment shall have been convicted, shall within party exist duly their Ob- place subject jurisdiction? this that there viously sub- provision recognized places United States but jurisdiction ject are not v. BIDWELL. McKenna, concurring. White, Shibas

Justices are hence not within the United it, into incorporated those sense of words. in the completest to show the decisions with- court, Let me proceed in accord- with the true absolutely out a exception, single from correct construction the Constitution a rule as evolved and as shown of first history' as a matter impression As been which has epitomized. previously the government which has hereto- I here, quotation repeat appropriate Mr. Chief delivered Jus- from the fore made been opinion, v. 1 Pet. Canter, Co. in American Insurance Marshall, tice the court said Florida (p. 542): where, considering treaty, if be not sub- nation is, entirely of the world The usage as a mere dued, to consider holding conquered at the be determined until its fate shall occupation, military If it be ceded treaty, acquisition treaty peace. nation ceded becomes confirmed, either on terms it is annexed, to which stipulated master shall cession, on such its new impose.” Mr. Chief court, In Fleming Page speaking through n Justice the acts of the forces of the military Taney, discussing while of Mexican United States holding possession territory, said How. (9 614): *76 it is true, The United extend its boundaries States, may by demand the cessionof treaty, territory conquest condition of in order to its citizens for the peace, indemnify the. have or to suffered, reimburse for the injuries they government of the But the war. this can be done the only by expense or the treaty-making power legislative authority.” In 16 How Harrison, Cross the for decision, question Ias have was as to the of certain observed, previously legality the collected both before after ratification duties, on into merchandise Califor treaty peace, foreign imported nia. duties collected were assessed Part upon importa tions local officials before notice had been received of made by the ratification of the and when duties were treaty peace, had been laid under a tariff -which the Presi promulgated by duties dent. Other were to the receipt imposed subsequent of the latter were laid ratification, notification these duties VOL. clxxxii —22 TERM, 1900. White, McKenna, concurring. Shibas and

Justices in the laws of to the tariff as provided according States. All the exactions were The court decided upheld. that to and to the of notice of the ratification up prior receipt of the the local the tariff treaty, lawfully government imposed then in force in it differed from California, that although pro- vided and that to the by notice Congress, subsequent receipt of the ratification of the the act treaty, duty prescribed by which the President had ordered the local officials to enforce could be collected. The undoubt- lawfully opinion the ratification of the edly expressed thought treaty as I have included the ceded question, shown, which, within the boundaries of the also ex- had become a provided pressly incorporation, of the United and the part body opinionquoted letter of the which referred to the en- Secretary Treasury actment of laws of which the had been im- Congress by treaty ratified. The of the court as decision to duties pliedly imposed of notice of the ratification of the subsequent receipt took the fact I have stated treaty peace undoubtedly just into and, addition, view unmistakably proceeded upon which the nature conferred. No comment treaty rights or do can obscure with the fact, stway patent namely, if decided that different had provisions unequivocally been found in the result would have followed. treaty, contrary Mr. Justice the court said Thus, Wayne, (16 speaking through How. 197): ratification of the California became a treaty,

“By of the United States. there is And,'«s 'nothing differently stip- it became commerce, ulated respect instantly bound and laws which had privileged by Oongress passed a revenue from duties raise imports tonnage.” as I It is. settled then, think, indubitably principles law of nations, created nature. under the Constitution, con- express implied powers ferred the mode government by have been which those from the executed, powers begin- *77 an unbroken line decisions of this first court, ning, Marshall and announced followed lucidly, expounded v. BIDWELL. White, McKenna, concurring. Shibas and Justices cannot that treaty-making power incorporate by Taney, without the or into the United States express implied territory in that it insert assent of conditions may Congress, treaty the other hand immediate incorporation, against n whenit has favorable to conditions treaty expressed if will, treaty incorporation, they repudiated by law the therefore land, have Congress, force cause fulfillment of such conditions incorporation result. It must that where a contains therefore, treaty follow, no for where it not conditions above and, all, incorporation, to the con- has no conditions such expressly provides of Con- does not arise until in the wisdom trary, incorporation reached is deemed that has gress territory acquired where it and form state should enter into proper of the American family. Does, contain á then, treaty question provision or does on the that incor- incorporation, it, contrary, stipulate shall not take from the mere effect of the poration place treaty Ques- onlv until has so determined? then tion for consideration. remaining provisions to the status respect

Porto Eico and its inhabitants are as follows:

“ Article II. cedes to the Spain United States the Eico Island of Porto and other islands now under iri West Spanish sovereignty and the Indies, Island of Guam in Ladrones.” the Marianas or

“Article IX. Spanish subjects, natives of the Peninsula, residing over which Spain by present treaty relinquishes or cedes her remain in such sovereignty, may territory may remove therefrom, in either event all their retaining rights sell property, including of such right dispose prop- or of erty shall also have the proceeds; they on their carry commerce and sub- industry, professions, being ject thereof to such laws respect as are other applicable In case remain foreigners. they pre- *78 TERM, 1900.. McKenna, White, concurring. Shikas and

Justices to the crown of their before Spain serve making, allegiance a the date of within from the a court of record, year exchange a declaration their decision to of ratifications this treaty, in such default of declaration they allegiance; preserve renounced it and to the shall be held to have have adopted in reside. of the nationality “The civil status the native inhabi- political rights shall tants of territories ceded to United States hereby be determined Congress.

“ Article X. of the relin- The inhabitants territories over which Spain or cedes her shall be secured in the free sovereignty quishes exercise of their religion.” that of the

It is me obvious the above quoted provisions do not on the contrary treaty stipulate incorporation, that the civil statios political rights expressly provide n territories shall ceded,” native inhabitants hereby When the to which this rights be determined by Congress. in those refers juxtaposition provision put .careful from the foundation which have deemed essential been have all of which about incorporation, brin¿ doubt That the to, I cannot been referred express previously not to leave the status was only treaty purpose but to to be determined by Congress prevent evi- Of course, to the contrary. treaty operating that by Congress dent implied acquiescence express that a was so cannot result a framed brought treaty import effect about which provisions giving itself— not And, addition, —could provisions produce. taken which the here in act imposed, duty question to manifest the intention whole, to me seem plainly is not to be Porto Rico that for the at least present into United States. incorporated .the The fact the act the officersto directs swear support Ias for, this view, Constitution does militate against not, have whether island conceded, incorporated A . force. are there applicable provisions v. BID WELL. White, McKenna, concurring. Shibas Justices of the act seems to me not to further analysis provisions fact as the act was view reported required citizen- from the committee contained provision conferring was stricken Rico, the inhabitants of Porto ship upon can be that therefore, out in the Senate. The argument, it was deter- after conferred, which, consideration, were rights Moreover I fail to see how it is mined should not be granted. on the one to declare hand, possible, passing *79 the act Porto Rico as not had exceeded its by treating powers at it into the United the same- States, and, time, incorporated be said that the act itself amount to incor- the an provisions of Porto Rico into the United the States, poration although had not so. It in reason done cannot be that treaty previously the act is it void because seeks to the island keep disincorpo- at the same that material rated, and, are not time, provisions to be the act does Two irrecon- incorporate. enforced.because cilable views of that act cannot be taken at the same the time, to cause it to be consequence unconstitutional. being In what has I have effect considered preceded sub- every stantial and have éither conceded or reviewed proposition every referred authority to as that immediate establishing incorpora- tion resulted from the of cession which is under consid- treaty eration. the Indeed, whole in favor of argument view that immediate followed incorporation the ratification of in its last treaty analysis comes to this: Since it necessarily has been decided that flows from a incorporation treaty pro- vides for that result, when its have been provisions expressly or impliedly approved must follow that the Congress, same effect flows from a expressly stipulates even contrary, the condition to that end has been although approved by That is to Congress. say, is this: argument Because a when provision ratified incorporation incorporates, therefore a provision must also against incorporation produce which it very consequence expressly provides against. result what has been said is that whilst in an inter- national Porto Rico was not a sense since it foreign country, was subject was owned sovéreignty it was the United States in foreign a domestic sense, TERM, 1900. White, McKenna, concurring.

Justices Shiras because the island had into United not been incorporated was merely possession. appurtenant thereto.as aAs assessed on necessary question consequence, impost merchandise Rico into the Porto coming after the cession was and that within the Congress, was not, as to such controlled body moreover, imposts, clause should be uniform requiring imposts throughout States; words, in other the Constitution provision referred to not just applicable legislating for Porto Rico. I have out heretofore that the

Incidentally arguments pointed with so much con- earnestness and expediency, pressed ability not cern legislative judicial department the.gov- But it observed if ernment. that even the disastrous may which are foreshadowed as from conced- consequences arising that the of the United States hold ing prop- without were to tem me to from what erty incorporation pt depart to be seems to me line of reason admon- plain judicial duty, that so would not ishes me serve evils doing prevent grave would come,but, is insisted must which it contrary, This be the result, more must since, render them dangerous. it seems to me serious said, already open dispute, *80 arm of the of the United States that the military government without hold and occupy conquered incorpora- may of time as seem to Con- may tion for such appropriate length discretion. The denial of the in the exercise its gress not therefore the the civil to do so would prevent if it the United States was deemed of territory by holding but would best the by political department government, it should be exercised the necessitate that by military simply the civil instead by power. me it further seems another

And to that and more apparent result than that stated would follow as a conse- disastrous just of an to cause to invade the judicial attempt judgment quence Quite domain of discretion. one of the recently legislative contained in the with which is now treaty Spain stipulations consideration came under review this court. under the By all claim of sover- Spain relinquished question provision BlDWELL.

DOWNES v. McKenna, concurring. and White, Shibas Justices further It was title to Cuba.” provided over eignty follows: as the treaty to be island is the evacuation by Spain the as upon And States will' so long the United States, occupied the obliga- shall last assume discharge such occupation as fact of from the result international law under tions life and for the property.” protection its occupation under this that, pro- it submitted, is cannot, It questioned the United occupation treaty, long vision ex- States of the United lasts, States benign sovereignty it of Cuba. Likewise, and dominates Island over tends when me, period seems not, questionable the legislative, is to be determined by is to cease sovereignty in the ex- States of the United of the government department sense it and duties ercise of the imposed great of the United which it owes to people responsibility it of for all the course feels States and the high respect United moral government obligations be bound. Consid- either expressly impliedly, may, of this the provisions reviewing ering pledges extraneous to that which the instrument, is to be held Cuba United States for the sovereignty benefit of the of Cuba and for their to be re- account, people to them when conditions its linquished justify accomplish- held this court ment, Henkel, U. S. unanimously Neely that Cuba was not into the United States incorporated was a It follows that it from this decision foreign country. lawful for the States to take of and hold in possession the exercise its with- territory, sovereign power particulár it into out if there be incorporating obliga- honor tions of faith which, good although expressed bind the to ter- nevertheless United States treaty, sacredly minate the dominion and discre- control, when, political it to do the situation is enable so. tion, ripe Conceding, true that it to be then, purpose argument, would for the be a violation of under duty *81 in the to ac- discretion, exercise of its legislative department, a cession of and hold which not permanently cept 8éá TERM, 1900.

n White, McKenna, concurring. Shikas Justices intended be incorporated, must presumption necessarily be within its that that lawful department, sphere of the conscience of the of the expression political people will be faithful to its under the Constitu- duty tion, therefore, when the unfitness and, of particular territory is demonstrated the will termi- incorporation occupation nate. I cannot conceive how it can be held that made pledges to an alien can be treated as more sacred than is that people great member given by pledge every every department United States to defend government support the Constitution. But if be it can I do think supposed which, course, —

to be conceivable—that would be authorized to judiciary draw to itself an act of functions, usurpation purely political if such is not theory committed a wrong greater harm will arise, because the other departments govern- ment will their forget duty wantonly transcend limitations, I am further admonished that any ju- dicial case action which would be such predicated upon an unwarranted would be It absolutely conception unavailing. that under the rule cannot be denied settled clearly Neely of the United States be Henkel, ex- sovereignty supra, tended remain until over foreign territory paramount discretion of the political department it be This method, deal- then, relinquished. be would, event, available. ing foreign territory, Thus, would enthralling treaty-making power, could result from that no holding acquired of cession without immediate would result incorporation, a resort to the subterfuge compelling relinquishment thus would indirection take the direct- sovereignty, place would ness action—a course which with the incompatible and honor dignity government.

I am authorized to Mr. Justice and Mr. Jus- say Shieas tice concur in this opinion. McKenna Gray, Justice concurring.

Mr. *82 v. BID 345 WELL. Gbay, concurring.

Mr. Justice and in case, in the of affirmance judgment Concurring White, of Mr. Justice with the I substance opinion agreeing few for concurrence will sum the reasons proposi- my up now in other cases also indicate tions, my position standing judgment. of the authority the court do not touch

The cases now before and technical States over the strict Territories, as bounded within those which lie the U&ited sense,being of Canada the Atlantic and Pacific the Dominion Oceans, by of Alaska and the of and the Territories Mexico, Republic ac- sense, in the broader Hawaii; relate territory, State. the United States war with a by foreign quired by As confers Chief Marshall said: Justice “The of mak on the of the absolutely Union government powers and of war, treaties; government ing making consequently, either possesses by conquest acquiring territory, be en The the world if a nation by is, treaty. usage subdued, to consider the tirely holding conquered territory as a mere until its military fate occupation, shall be determined at the If it be treaty ceded peace. by treaty, acqui sition is and the confirmed, ceded becomes a territory nation which it is annexed; either the terms stipulated or on cession, such treaty as its new shall im master American Insurance Co. v. pose.” Canter, Pet. (1828) 542.

The civil of the government United States cannot extend im- its own mediately, force, over territory war. acquired by Such must territory in the first necessarily, instance, gov- erned under the military power control of the President as commander in chief. Civil cannot take effect at government soon as once, possession under acquired military authority, or even as soon as that is confirmed possession It by treaty. can action operation of the put appropriate at political such time and in department government, such as that degree determine. department may There ne- must, be a transition cessity, period.

In a civil conquered must take territory, government effect, either the action of the treaty-making power, TERM, Gray,

Mr. Justice concurring. United States. The office of a is to cession an end to all ordinarily put authority foreign over the and to ; government territory subject of the Government of the disposition States. so disposition be- acquired to the Government of the United States, long consisting the Senate, elected President, and- House of *83 chosen and by Representatives, the immediately representing of the United States. Treaties people is ac- by territory from a State foreign this. quired usually recognize It is clearly recognized the recent with es- treaty Spain, “ ninth which The article, civil by the. and pecially rights status the native inhabitants of the territories political here- the ceded to United States shall be determined by Con- gress.” and the fourth thirteenth articles of the

By Uni- treaty, for ten and that, ted States years, merchan- agree Spanish ships to the be admitted shall Islands on ports dise Philippine as terms merchandise of the same ships States, scientific, and artistic works, subver- literary and Spanish shall order, continue to be admitted free of sive public duty territories. Neither of the ceded could provisions all the into out if the Constitution customs carried required regula- in those territories. of the United' tions apply regulation In the absence Congressional legislation, after even territory, revenue treaty conquered .the executive military authority. remains cession, has not into incorporated territory So long nor cession neither occupation by' military domestic territory, makes conquered But laws. those laws concerning foreign of the revenue sense until remain applicable conquered countries” the unanimous Such was opinion by Congress. changed v. Chief Justice Fleming declared Taney, Page, court, 9 How. a is not to construct complete government

If ready establish gov- territory, temporary conquered the restrictions of the to all Con- is not ernment, subject stitution. BID WELL. JJ., dissenting. J., Peokham, Harlan, C.

Fuller, Brewer of the act 12,1900, the effect Congress April Such was revenues and a An act provide c. entitled temporarily'to for other Eico, for Porto By purposes.” civil government it was declared that the act, of that third section expressly on merchandise articles established duties going thereby into the from the United into Porto Eico coming should event on cease Eico, from Porto United States if of Porto sooner legislative March 1, 1902, assembly .the of local tax- into enact and operation system Eico should put established the necessities ation meet .of that act. dur- established that act of duties, system temporarily was within the the transition authority Congress period,

ing under the Constitution of the United States. whom concurred Mr. Jus- (with

Mr. Chief Justice Fuller, Brewer and Mr. Justice tice Mr. Justice Harlan, Peokham,) dissenting.

This is an action to recover exacted brought moneys at collector of customs New York as duties port import *84 on two of fruit from in the island of Porto shipments ports Eico to the of York in New 1900. November, port Eico

The Porto to the United States rati- treaty ceding fied the Senate, 6, 1899; an act February Congress passed out its March and the ratifications carry obligations 3,1899; were and the treaty 1899. exchanged, proclaimed 11, April Then followed the act 1900. 31 Stat. approved April c. 191.

Mr. Justice Mr. Harlan, Justice Mr. Brewer, Justice Peck- ham and unable to concur the and myself opinions judg- of ment the court' in.this case. The differ in majority widely the conclusion is reasoning by reached, although there seems be concurrence the view that Porto Eico to the and States, United notwith- nevertheless, belongs act is of of the United standing Congress, States, of the to the Constitution in subject provisions respect n of and excises. taxes, duties, imposts levy TERM, JJ., dissenting. C. Peckham, and Fuller, J., Harlan, Brewer far as it so 12, 1900, is whether the act of inquiry April on merchandise duties brought of requires payment import into other from a of of Porto Rico as a condition port entry Federal Con- with the United consistent States, ports stitution.

The act civil Rico, creates a Porto officers, and other Governor, General, ap- Secretary, Attorney consent and with the advice and President, by pointed likewise with five other Senate, who, together persons, and an coun- so are constituted executive confirmed, appointed cil local in a ; are vested legislative assembly, powers legislative the executive council and a house of consisting delegates be elected courts are other ; for, and, among things, provided Rico is Porto constituted a with a district district, judicial judge, and marshal to be for the President attorney appointed by four term of The district court is to be called the Dis- years. trict Court for Porto and to Rico, the United States possess, of District in addition to the Courts ordinary jurisdiction in the all cases Cir- States, cognizant jurisdiction act also United States. The provides Courts cuit final decisions and from of error appeals “Writs and, Rico the District Court of of Porto Court Supreme allowed be taken to the Supreme States shall United manner and under the same Court cases as same Supreme same regulations writs such States; of the United Territories Courts in all cases where the Con- be allowed shall error appeal or an act thereof, or a stitution there- claimed question Congress brought is denied.” under inhabitants to reside also continuing

It was provided 11, 1899, who were Rico, subjects April Porto Spanish such as thereto, (except their children born subsequent Crown their Spain,) elect to allegiance preserve should in. Porto of the United residing with citizens together *85 of under the name The a constitute should Rico, body politic herein- with Rico, powers of Porto governmental People be sued as and such.” with to sue and conferred after v. BIDWELL. 349' JJ., dissenting. and J., Peckham, Harlan, C. Brewer Fuller, “to act are before required officials authorized by All offices an take oath their duties of respective entering upon and States the laws' of the United the Constitution to support of Pico.’* Porto fifth and sections of thirty-eighth third, fourth, second, in the margin.1 are

the act printed tariffs, act the same cus passage of on and after 1 Sec. That paid upon collected, all im and articles levied, toms, and duties shall be ports those States than United ported from other into Porto Rico imported upon articles into the required by are law to be collected Provided, That on all coffee in the foreign countries: States from United be levied and collected there shall ground imported into Porto Rico bean contrary law to the not per pound, any of duty of law or a five cents scientific, Spanish literary, provided further, That all withstanding: And Rico, public shall in Porto be ad works, of order not subversive and artistic years, period reckoning a of duty into Rico for ten of Porto mitted free pro ninety-nine, day April, eighteen of hundred from the eleventh Spain: peace the United States and between And vided said printed further, pamphlets provided That books in the English duty imported Rico free of be admitted into Porto when language shall from United States. passage after the of this act all on and merchandise Sec. 3. That coming coming the United from Porto Rico into info States Porto Rico from ports at entry upon entered the several pay- States shall be the United per required levied, fifteen centum duties which ment of to be col- lected, paid upon imported like articles merchandise foreign from countries; upon thereto and in addition articles merchandise of Porto coming manufacture into the United States Rican and withdrawn for con- equal sumption upon payment or sale tax to the internal tax revenue im- upon posed in the like the United States articles of merchandise domestic manufacture; paid by stamp stamps such tax to be internal revenue provided by purchased and the Commissioner of be Internal Revenue and procured collector of revenue at or most internal convenient port entry of said merchandise such,regulations under as the Revenue, affixed Commissioner of Internal approval Secretary Treasury, prescribe; shall and on of merchandise of coming all articles manufacture into duty provided upon payment Porto Rico addition to above tax equal imposed amount to the internal in rate and revenue tax in Porto Provided, the like articles Porto Rican manufacture: Rico That on effect, this act and after the date when take all merchandise shall articles, except coffee, under not dutiable the tariff laws duty and all merchandise and articles entered Porto Rico free of War, Secretary made under orders heretofore shall be admitted *86 TERM, 1900. Peckham, J., Fuller, Harlan, JJ., dissenting. and O. Brewer “ It will seen that duties upon merchandise imposed ”(cid:127) “ into Porto from United States; Rico the merchandise coming imported ports thereof, into the from several when the United free duty, contrary parts of all laws or of the notwithstanding; laws and legislative assembly the Porto whenever of Rico shall put have enacted and operation system into of local taxation to meet the gov- necessities of the established, ernment Rico, of Porto this act duly and shall resolution passed notify proclamation President, shall thereof, so he make and thereupon-all tariff on going duties merchandise and articles into Porto Rico coming from the or United States into United from States Porto cease, Rico shall and from and all after such date such merchandise and ports entry articles shall be at duty; entered the several of free of and in any no March, event shall duties be day after first collected of nineteen two, hundred and on going merchandise and articles into Porto Rico from coming United States or from into the United States Porto Rico. pursuance Sec. 4. That the duties and taxes collected in Porto Rico in of act, same, this less the collecting gross cost of and the amount of all of upon collections duties and taxes in the States United articles of mer- coming chandise Rico, from general Porto shall not be covered into the separate Treasury, fund, fund shall be held as a and shall be disposal placed government to be for the at the President used and government provided Rico until the of Porto Rico herein benefit of Porto moneys all organized, theretofore collected for shall have been when under unexpended, provisions hereof, shall be transferred to then the local Secretary Treasury treasury Rico, and designate Porto shall ports sub-ports entry into Porto Rico shall the several and and make appoint may regulations agents necessary and and such as such rules levied, collected, paid to be and collect the duties and taxes authorized act, provisions compensation fix Porto this and he shall Rico officers, provide payment agents, of all for the thereof such assist- employ carry provisions necessary out the ants as he find it Provided, hereof; however, government That soon as a civil for Porto provisions organized Rico shall have been in accordance with of this given act and notice thereof have to the President he shall shall been make proclamation thereof, all and thereafter collections duties taxes in paid , provisions the treasury Porto Rico under the of this act shall be into Rico, expended required of Porto to be for the law Treasury being paid benefit thereof instead of into the the United States. day go Seo. 5. That on and after when this act shall into effect all wares, imported goods, previously Rico, and merchandise from Porto for made, entry wares, goods, pre- which no has been and all and merchandise viously payment duty without and under entered bond for warehousing, transportation, purpose, permit delivery other which no subjected importer issued, agent or his has been shall be to the duties imposed act, duty, upon entry and to no other or the withdrawal v: BID WELL. Peckham, Harlan, JJ., J., dissenting. Brewer Fuller, C. ” Rico; from Porto taxes the United States into coming “ Rican manufacture Porto merchandise coming articles and withdrawn consumption States into ” “ tax to the internal-revenue imposed sale equal ” of domestic manufacture; like articles States upon manufacture coming of merchandise articles to the in- and amount rate taxa Rico,” into Porto equal *87 like articles in Porto Rico upon tax imposed ternal-revenue manufacture.” Porto of Rican in Porto Rico collected that all duties

And also provided “ merchandise and coming countries on from on foreign imports “ the amount and. from United States,” gross into Porto Rico of duties and upon all collections taxes of shall Porto Rico,” from merchandise coming articles be. “at fund and disposal held placed separate of Porto and benefit for to be used President government ” col- when all the local until organized, Rico and duties under this act shall be of taxes into the lections paid of Porto Rico instead into the treasury being paid Treasury of the United States.” I first clause of section of Article

The Provided, upon weight That when duties are based of merchan- thereof: any private deposited public or bonded dise warehouse said duties shall weight levied and collected such merchandise at be the time of entry. from Porto for ticipate and Porto Rico or credit, the relief of the industrial That shall gate Sec. the insular and provide August eighth, eighteen hundred franchises, defined tax valuation of its no be authorized or allowed in excess and to 38. That ^[*] taxes public expended Rico; for reimburse any municipal government privileges, act ^[**] expenditures indebtedness no but municipal revenues, export out taxes ^[*] the United property. and legislative assembly; conditions duties shall and assessments on bonds governments, respectively authorized concessions emergency ^[*] Porto States for Rico other Porto Rico caused be therein as ^[*] may fund of the ninety-nine. levied seven or of law, obligations may any be and where property, ^[*] imposed and to per any moneys or may centum collected municipality War Provided, protect ^[*] may for the necessary provided by and Department be issued be license have hurricane ^[*] purposes provided however, exports thereof public aggre- been fees law an- TERM, J., C. Fuller, JJ., Harlan, and Peckham, dissenting. Brewer “ The provides: shall have and collect levy taxes, duties, imposts excises, the debts and pay provide for the common defence and welfare of general the United States; all duties, imposts excises shall be uniform throughout States.”

Clauses four, five and six of section nine are: “No or other capitation, tax direct, shall be unless in laid, proportion census or enumeration hereinbefore directed to be taken. tax or No shall be laid on duty articles exported any State.

“No shall be preference commerce given regulation or revenue to the of one State ports over those of nor another; bound shall vessels to, or from, one State, be to enter, obliged duties in clear, another.” pay

This act on its face does not' with the rule of uni- comply and that fact is admitted. formity the Constitution uniformity is a required by geograph ical and is attained when the tax uniformity, operates effect in where the same every place force subject *88 v. U. S. Moore, 41; is Head found. Knowlton Money Cases, 178 594; 112 But is said that in S. 580, U. Congress attempting was not to duties derived from the power these exercising levy or restricted in 8, it, because first clause section dealing exercises unlimited territories with the powers gov these duties are moreover, local and, ernment, merely taxes. in when Marshall was Chief

This and Justice, court, William Duvall and Johnson, Todd, Livingston, Washington, took a different view of were his the associates, Story power and taxes, in the matter duties, collecting laying in the and its in territories, and excises ruling Lough imposts has never been overruled. Wheat. Blake, v. borough that the It is said one Chief opinions majority “ which have made certain observations occasioned some Justice in other cases.” this is so this Manifestly embarrassment. to overrule that decision in to for it is order case, necessary announced. the result herein reach WELL. BID JJ., Peckham, J., dissenting. and Harlan, Fuller, Brewer C. v. Blake whether Con- The Loughborough question on a direct tax the District to had the impose gress exclusive which the legislation, grant Columbia apart The court local taxes. held that Con- the to carried levy power under the clause The rea- had such question. power gress directed to Marshall was show that the of Chief Justice soning “ collect taxes, and duties, to lay the imposts grant power of. and without limitation as it was excises,” general because and “ to all over which the places extended to place, consequently if could he this be that, declared extends,” words, was removed the the doubt doubted, subsequent but all excises duties, imposts modified which grant, He then said: United States.” uniform be throughout shall contended the modification will be power It not extend. which itself does to extends places power and excises duties, then to collect imposts lay power the United and must be exercised exercised, throughout term or whole, Does this States. designate any portion ? American can Certainly question admit of empire It is name our one answer. given great republic, States and territories. is The District of composed west of is Columbia, Missouri, not less within than the United and it is Maryland Pennsylvania; of our not less Constitution, that necessary, principles duties excisesshould uniformity imposition imposts, than in the other. one, observed Since, then, and collect taxes, includes direct taxes, lay power coextensive and collect du- obviously power lay excises, since the latter ties, extends imposts through- follows that the out direct impose also extends United States.” taxes throughout inadmissible It reject process reasoning wholly reached and tested which the Justice Chief soundness obiter. his conclusion as merely *89 intimation is that the turned on the Nor there any ruling adhered the Constitution to soil theory irrevocably and, and Maryland Virginia, therefore,.accompanied parts to .form the or that be- District, which were ceded “the tie” yol. clxxxii —23 TERM, 1900. JJ., J., dissenting. and Harlan,

Fuller, Peckham, C. Brewer “ could not be the Constitution dissolved, tween those States and and state of the Federal at the consent without least govern- this was not and that a ments to formal given by separation,” with the constitu- cession and its accordance acceptance hence that was restricted tional and provision itself, Congress while not so District, in the exercise of its powers territories. held the

So far from Chief Justice territories as that, the to States for the well as the District of the United pur he of national and effect what had taxation, poses repeated 4 Wheaton, said McCulloch v. 408 : Maryland, already this vast the St. Croix to Gulf Throughout republic, revenue is to be Pacific, from the Atlantic to the Mexico, and and are to be marched collected armies sup expended, ported.” for the of territo- to tax purposes

Conceding power from the is power govern territory, rial implied is attributed the latter power acquire whether power rules and these needful regulations, to make par- or the power in their nature, not local are are nevertheless ticular duties The of national is in the exercise powers. levy as imposed and a commerce, regulation affecting clearly regulation as this their as well States and people to act on the directly rights people. power can exist if, of the States interests people Con- And Constitution. as, granted commerce is vested with regulate foreign power gress and with the Indian the several nations, among not mentioned name, tribes.” The territories indeed the territories nations commerce between foreign yet covered, in- seem to have been which would clause, com- the entire internal tended embrace well foreign merce country. commerce cannot be-

It is evident regulate other térritories in and the States and tween bare exercise particular territory, power govern and does on the this act was framed to and as operate operate so legislate apparently people *90 v. BID WELL. 355 J., Harlan, Peckham, JJ., dissenting. C. Fuller, and Brewer that rested on to commerce assumption regulate and States territories comes within the commerce between.the Hennick, clause Stoutenburgh necessary implication. U. S. the act of entitled Accordingly August

“ limit the effect of An act to of commerce be- regulations and with tween the countries in several certain foreign in terms to the as territories well as to the States. cases,” applied In view, duties commerce any point imposition to and is not a local matter of commerce, operates regulate leg- and it follows ; islation that the duties was in the these levy of the national exercise to do to the re- so, power subject quirement geographical uniformity.

The fact that the are devoted the act the use proceeds does not make national local. taxes, Nobody duties, collect disputes power lay geo- uniform, graphically apply proceeds by proper appro- act the relief of a but the destina- priation particular territory, tion would not the source of the proceeds change power And and collect. is not lay suggestion certainly strength- ened when based on the diversion of duties collected from all of the United States to a territorial before reach- parts treasury of the United States. ing Treasury Clause J section 9 “ I of Article no be drawn provides shall from the money but in Treasury, made consequence appropriations law,” and the proposition rendered if inapplicable is not to be in so to be money permitted paid susceptible drawn out, somewhat being startling.

It is also that Chief Justice Marshall was urged entirely fault because while the was and without limita- grant general tion toas words, place, throughout States,” a limitation as to so far rule of imposed place uniformity concerned, limitation to the namely, States as such. the view of the Chief Justice was Undoubtedly incon- utterly sistent contention, with that and, addition to what has been he further remarked If it : be said that quoted, principle established secures the uniformity, Constitution, Dis- trict of indirect oppression imposition taxes, TERM, 1900. J., Hablan, JJ.,

Fullee, Peckham, dissenting. C. Bbeweb true that the also not less estab apportionment, principle the District from lished in the secures any oppres and collect direct sive exercise taxes.” It power lay in mind that the was of the must be borne absolute grant of taxation for national unlimited toas wholly purposes, place, one two subjected exception qualifications. was that could not be taxed at all. The exception exports *91 that direct taxes must be were imposed by qualifications- rule of and indirect taxes the rule of uniform apportionment, 5 Wall. 462. But License Tax as the neces Cases, ity. power could be exercised of the national sarily throughout every part and the domain, State, District, Territory, exception quali fications attended its That is to exercise. say, protection extended to the of the States extended also to the people people of the District and the Territories. In Knowlton v. S. Moore, 178 U. is shown that the ” “ the United States are but throughout

words qualification introduced for the rendering .of purpose uniformity pre- and not as would have resulted scribed, intrinsic, geographical, not been if had used. they taxes and duties un-

As the power lay grant and the words were added for the sole as to pur- place, qualified uniformity intrinsic, required being pose preventing circumscribe area within which the intention thereby cannot be could but the operate imputed, power must contrary presumption prevail. natural the words in their the sense in meaning Taking —in used—no are and reason is commonly they frequently Chief Justice in with the the view disagreeing

perceived that were used in this clause designate geographical “our known States,” as “The United great unity republic, of States and territories.” which 'is composed furnish illustrations of the Constitution Other parts Thus the vests of this view. correctness “ uniform establish an rule of with the naturalization, laws on the and uniform subject bankruptcies throughout States.” the United v. BIDWELL. J., Hablan, JJ., dissenting. O. Peckham,

Fuller, Brewer States, territories as as the has to the well This applies legislation been binding. always recognized are citizens of the territories made the United Aliens in the territories are States, residing discharged bankrupts uniform citizens the States from debts pursuant owing in the exercise of this rules and laws power. enacted by born The Fourteenth Amendment provides persons States, or naturalized in subject jurisdic United States of the States tion thereof, citizens ” - held, this court naturally wherein they reside; in United House 16 Wall. Cases, Slaughter ob Mr. Justice Miller and the territories. cluded District man was : eminent no served It-had been said by judges one a citizen of he was a citizen except had who therefore, the Union. Those, States composing inor born and of Columbia been resided the District always not citi territories, within the were though had never Whether or not zens. was sound proposition at been decided.” And he said the was put judicially question and the rest distinction between Amendment, citizenship *92 and of United States of a State recog clearly citizenship man citizen nized and established. abe may “Not"only im an the United States without a citizen of a but being State, the lat element is the former into convert necessary portant must He within the make him a citizen ter. reside State to but is he be born or naturalized it, should necessary in the United to be a Union.” States citizen of the No is to the President he has officeof unless person eligible “ attained and fourteen been age thirty-five years, within the States.” Clause sec. 5, 1, a resident years II, Art. if

Would a citizen of native-born Massachusetts be ineligible and the terri- he had taken his residence resided one of up not for so he had resided years tories many altogether for must be a fourteen in the States? When voted he years Art. Art. 3, citizen of one the States sec. (clause II; XII), in the of time must residence territories length him counted ?. against TERM, J., Harlan,

Fuller, JJ., C. Peckham, dissenting. Brewer “ Fifteenth The Amendment declares that of citi- zens United States to vote shall not be denied or abridged the United States State on account by any of race, color, condition of servitude.” previous Where does that prohibi- tion on the United States if the terri- especially apply tories ? The Thirteenth Amendment that neither nor says slavery “ servitude shall exist

involuntary within the United States or to their any place subject this jurisdiction.” Clearly prohibi- tion would have if operated territories the concluding words had not been added. The of the times shows history that the addition was made in view of the then condition of amendment country the house passed January 31, —the is moreover otherwise than to the ter- applicable —and ritories. Besides, when words are used generally speaking, out of abundant simply caution, the fact carries little weight. Other illustrations be adduced but it is might unnecessary them. prolong opinion by giving I that no has been repeat satisfactory "ground suggested the words restricting throughout States,” quali- duties, and that .impose con- fying power clusion is the more be avoided when we reflect that it rests, the last the assertion of the Con- analysis, possessionby over the unlimited territories. gress The of the United States is the or- government dained possesses powers conferred the Constitution. This will original supreme organ- izes the to different government, assigns their departments It either or establish here, certain respective powers. may stop limits not to be transcended those The departments. gov- ernment of the the latter description. .United are defined limited; powers legislature those limits not be mistaken or the Constitution forgotten, written. To what and to limited, what powers purpose pur- *93 if is that limitation committed to these limits pose writing, may, ” at those intended to be time, restrained ? passed by Madison, v. 1 The Cranch, 137, 176. Marbury opinion court, Justice by.Chief Marshall, case, was delivered at v. BIDWELL. JJ., Peckham, J., Harlan, and dissenting. C. Brewer Fuller, October term, and at the terra, 1803, February v. U.S. through Wo speaking Yick court, Hopkins, we consider nature When and Matthews, said: Mr. Justice of our institutions principles upon government, theory their and review rest, history are which they supposed to conclude that 'do not they are constrained we development, action of and for the purely personal room leave play mean itself is, course, not sub Sovereignty arbitrary power. and source but our law; author for it is the law, ject to the are delegated while sovereign agencies powers system, with the itself remains people, sovereignty government, exists and acts. And and for whom all whom government and limitation law is the definition power.” no Madison utterance day, From Marbury present a doubt that in its on court has intimated of this operation whom and for whom was the national established, people, is a of enumerated the exer- government powers, government which is restricted the use means cise appropriate and which ends, to constitutional are not adapted pro- plainly the letter and consist with Constitu- hibited, spirit tion.” to their are not

The delegated by people powers agents the domain within which are enlarged by expansion on When the restriction the exercise of a particular exercised. is an end of ascertained, is agent particular question.

To hold otherwise to overthrow the basis of Our is constitu- tional to reassert the law, moreover, effect, proposition that the States and not the created the people government. Chief when he

It Justice said: Marshall, antagonize again in- be the Union, then, (whatever “The government this fact on the fluence of is, case,) truly, emphatically, In form and substance em- government people. from them. are them, anates Its powers granted their This them, to be exercised and for benefit. directly one of enumerated acknowledged 4 Wheat. 404. powers.” clauses of the Constitution are many, prohibitory *94 TERM, 1900.

360 Harlan, Peckuam, ,JJ., dissenting.- Fuller, J., and Brewer O. court this have been effect by respect repeatedly given they Territories and the District of Columbia. indicated Chief The Justice underlying principiéis Taney, Cases, The 7 he maintained 283, 492, How. where Passenger the American citizen to free transit words: in these right do as we under a common Living government, charged concerns whole great citizen Union, every from the most remote States territories, entitled to free not access, only principal departments established at but Washington, to its also tribunals and judicial officesin public State every the Union. . . . For all the for which purposes great Federal government we are formed, one with one common- people, country. are'We all citizens of the United ; States and, as members the same must have the community, right pass repass itof without through every part as in' interruption, freely our own States.”

In Cross v. Harrison, 164, 197, was held that How. the ratification with’Mexico “California became and that: States,” of the United claimed to land within United States at out foreign goods place if of a would district, allowed, collection be a violation of that in the Constitution which that all provision enjoins duties, be uniform excises shall imposts throughout States.”

In Dred v. 19 How. Scott the court was unani Sandford, inmous that the a terri holding legislate respecting was limited restrictions tory Constitution, or, as Mr. Justice it, Curtis “the put Con express prohibitions not to do certain gress things.”

Mr. Justice McLean said: “No can be exercised powers are prohibited or which are con- to its trary spirit.”

Mr. Justice “I look in vain, discus- Campbell: among sions for the time, assertion of a for supreme sovereignty over the then to the United belonging or that thereafter I seek in vain an they might acquire. annunciation had been consolidated power inaugurated, BTDWELL. J., JJ., dissenting. Beckham, Harlan, Puller, C. Brewer and which had no re- an. empire, whose comprehended subject the discretion but Congress.” striction over “The prop- Justice persons Chief Taney: powers are not not of which we granted Congress, speak erty to ex- are forbidden denied, terms express the States, confined And ercise them. prohibition *95 and to the whole territory extend are but the words general, includ- the Constitution gives power legislate, over which territorial of it under those remaining government, ing portions It is a total absence as well as that covered States. within dominion of the United States,

everywhere of a so far these are con- the citizens rights territory, places on the same with citizens cerned, footing inroads which them any guards firmly against plainly under of im- government might attempt, plea general or incidental powers.” plied of the later cases were from territories over Many brought “ had to extend the Congress professed Constitution,”

from the District after similar but the decisions did provision, that rest view restrictions on were Congress be withdrawn at the self-imposed, might that pleasure body. Traction v. 174 U. S.

Capital Company 1, is a fair illus- Hof, for it was there tration, ruled, Websterv. 11 How. citing Reid, v. 437; Wilson, Callan U. S. 550; v. Utah, 170 Thompson “ S. that it is 343, U. at doubt, beyond that the present day, of the Constitution of the United States provisions securing of trial whether in civil or criminal by jury, cases, to the District of Columbia.” applicable No reference whatever was tomade section 34 of the act of 62, c. 21, 1871,16 419, Stat. which, for February providing election of a for the closedwith the District, words: delegate “The number of votes shall be person having greatest legal declared to be and a elected, certificate governor duly thereof shall be and the Constitution and given accordingly; all laws of the United which are not locally inapplica- shall have the same force and ble, effect within the said District of Columbia as within elsewhere the United States.” TERM, 1900.

m J., Harlan, JJ., C. Fuller, dissenting. Peckham, Brewer did the court in Nor Bauman v. S. attrib Ross, 548, 167 U. ute Fifth Amendment to the act of Con application it was cited to another although gress, point. The truth is that, as Edmunds the instances Judge wrote, in which has declared statutes territo organizing ries, and laws should be force there, are no evidence were not for they there, already and all bodies have often made legislative enactments that in effect declared merely law. In cases existing such de clare a truth to ease the doubts of preexisting casuists.” Cong. Rec. 1st 56th Sess. Cong. p.

In Callan S. Wilson, 127 U. which was a criminal in the District of prosecution Columbia, Mr. Justice Harlan, court, said: There is speaking nothing history of the Constitution or of the amendments original justify the assertion of this District people .the lawfully of the benefit the constitutional deprived guaran- tees of life, liberty, property especially privilege — of trial criminal cases.” And further: “We can- by jury this District in that have, not think that people regard, *96 to the those accorded of the less than territories people rights States.” of the United U. S. it held that

In v. was a stat- Utah, 343, 170 Thompson of of the trial criminal Utah, ute of the State providing a than was invalid other as jury cases eight, capital, committed Utah on trial for a crime before was ad- applied “ it for the State of Utah, mitted that was not ; competent in Union, into to do its admission respect Thomp- upon done crime what the United could not have while son’s ” and that an act of Utah was a Territory; Congress providing for' a Utah Territory trial by jury eight persons been in would have conflict Constitution. with of the “This Article 6 Constitution ordains: Constitution, made in of the United States which shall be the laws persu- made, ance and all treaties which shall be made under thereof of the shall States, United be the law of authority supreme the land.” as Mr. Justice Curtis observed United States v.

And, Morris, v. BIDWELL. 363 Peckham, JJ., Fullee, Hablan, dissenting. J., BEEWEE-and C. “ than the can clearer intention to Curtis, nothing and treaties of United States laws, have the force every throughout part equal in all at all times.” alike places, result will be if the it an reached is said that But opposite in American Marshall Insurance Com- of Chief Justice opinion “ in be read connection with Art. 1 Pet. 511, Canter, pany ‘the the Constitution, secs. and 2 of Ill, vesting judicial power ’ ‘ and in in- in one such Court, United States Supreme ordain, to time courts ferior Congress time and inferior courts, both establish. The judges, Supreme ” etc. And behaviour,’ hold their offices shall during good vested is : As the is Congress only judicial power argued offices shall their create courts whose hold during good judges behaviour, it if authorizes the follows that, Congress necessarily for a limited of courts and the creation judges appointment must the Constitution, act time, independently mean- States within the which is not part of the Constitution.” ing if the

And territories “be a further, of the United part how it is difficult to see could create courts under the such clause of territories, the Consti- except judicial tution.” the .ninth clause of section 8 of Article I,

By “to constitute tribunals inferior vested to the power Su- section 1 Court,” while Article III the preme power to it inferior to establish in which courts granted judicial treated of in that article is vested. power That was to be exertéd over the therein controversies and did not relate named, administration general jus- which was committed territories, tice to courts established the territorial government. said Justice courts, *97 What Chief These 546): (p. in are not constitutional which the courts, then, judicial power on the can the Constitution conferred government general of it. are are incapable They receiving They deposited. in of the of sov- created virtue courts, general legislative in in the of that which exists virtue government, ereignty TERM, 1900. JJ., J., dissenting-. Harlan, Peckham, Fuller, C. Brewer all needful rules and enables make regu- clause which Congress to the United States. lations territory belonging respecting is not a with which are invested The jurisdiction they third article which is defined judicial power but in the execution is conferred by Congress, the terri- those which that ovei general powers body possesses tories the United States.” Chief was with Justice in view of dealing subject of the

nature judicial department and the distinction between Federal and state jurisdiction, the con- clusion to use the was, of Mr. Justice language Harlan in McAllister v. United States, U. S. courts territories, created under the that' plenary municipal authority over the Congress territories possesses are not courts of the United States created under the con- authority ferred that article.”

itBut did not therefore follow that the territories were not of the United and that the parts Congress, over nor was there in general, them, unlimited; any discussions on this the least intimation to that effect. subject

And this be said in some expressions other justly color to cases, domin- doctrine of absolute supposed give ion in civil dealing rights.

In 114 U. S. Mr. Ramsey, Justice Matthews Murphy said: “The and civil inhabitants personal rights territories are secured to as to other them, citizens, by prin- constitutional restrain ciples liberty agencies and national. Their state government, political fights franchises, 'which hold as dis- privileges legislative n cretion cf the of the United States.” In the Mormon Church 136 U. S. Case, 1, 44, Mr. Justice observed: Bradley Doubtless for the Congress, legislating territories, would those fundamental subject limitations in favor of which are formulated the Consti- personal rights tution and its amendments; these limitations would exist inference and rather general spirit derives all its than powers express direct application provisions.” *98 v. BIDWELL. 365 JJ., dissenting. Beckham, J., Hablan, Fullee, Bbeweb C. to the fact that the Constitu- That able referring judge declare that its not does prohibitions operate tion expressly but because of the territories, to govern implica- power to that effeet be essential, that an might tion' provision express were constrained to dissent, the court members of regard- three that absolute of vital as ivas it, said, consequence power ing our under should never be conceded belonging system its one of departments.” government v. in over Ramsey What Aims ruled in places Murphy local over has exclusive jurisdiction power Avhich status is political plenary. to the citizen- Much discussion was had at the bar respect not but we are of the inhabitants Porto Eico, required ship will It be time to consider that at in these cases. subject large to seek a ford if we are ever, brought when, enough stream.

Tet we are confined to the although validity question of certain duties after the of Porto Eico imposed organization aas United States observations some few references to cases well be added view adjudged enough of the line of in the argument pursued concurring opinion.

In American Insurance Canter, Pet. Company 541— which, did the court not way, the views of accept Mr. Justice Johnson in the Circuit Court or of Mr. Webster in Justice Marshall argument said: The course Avhichthe —Chief has will taken, argument that, require, deciding ques the court should take into tion, vieAvthe relation Florida stands the United States. The Constitution confers on the absolutely government Union, the of mak poAvers Avar, ing treaties; making consequently, government possesses either acquiring territory, by conquest world if a by treaty. is, nation usage entirely subdued, consider the holding as a mere conquered territory until its fate shall military occupation, determined at If it be ceded treaty peace. treaty, acquisition and the confirmed, ceded becomes a of the nation to which it is either on the annexed; terms stipulated or on such cession, as its new master shall impose. TERM, Peokiiam, JJ., J., Harlan, C.

Fuller, dissenting. Brewer On such transfer of has never been that the territory, held, relations the inhabitants each other undergo any change. Their relations with their former sovereign dissolved, new relations are created them, between has their The same acquired act which territory. transfers *99 their transfers the country, of those who allegiance remain law, and it; be denominated may is neces political, that which sarily changed, although the intercourse, regulates and conduct general individuals, remains in until altered force, created newly the State. On the power 2d of Feb ceded Florida to ruary, Spain the United The States. sixth article of the of cession contains the treaty following pro ‘ vision The : inhabitants of the which his territories, Catholic cedes to the Majesty United States be in shall treaty, in the Union of the United corporated as soon as may be consistent with the of the Federal Constitution; principles and admitted to the of the arid enjoyment privileges, rights, immunities of the citizens of the United States.’ This treaty is the law of the and land, admits the inhabitants of Florida and immunities, of enjoyment privileges, rights, the citizens of the United States. It is unnecessary inquire, their condition, whether this not independent stipulation. however, do do not, political They participate power; till Florida shall share become a State. government, In mean continues to a Florida be time, territory virtue that clause in the Con States; governed by £ stitution, which to make all needful rules empowers Congress other and regulations, respecting territory, property to the United States.’ Perhaps power belonging govern which has not, ing belonging State, means of by becoming acquired self-government, from the is not result within the necessarily facts, is within the State, jurisdiction any particular power the United States. right govern may jurisdiction the inevitable consequence acquire territory. the source, whence the derived, Whichever'may of it is unquestioned.” possession BID WELL. JJ., Peckham, dissenting. Hablan, C. J.,

Fullee, Bbeweb after 1st ed. Law, Halleck, chap. §14,) (Int. General observed: Marshall, Justice from Chief quoting rule of the law of and is nations, a well settled is now This are clear and Its admitted. simple, provisions universally between but it is not so understood; easy distinguish easily and to de- and what are laws, municipal what political the constitution and laws and how when termine far And those conquered. replace change conqueror state is a constitutional of the new gov- case and divided necessarily of limited ernment, powers, questions the absence which, legisla- arise authority, respecting after action, can be exercised tive conquered of a and the conclusion war, the cessation peace. the institu- of these The determination questions depends conformable which, laws of the new though tions sovereign, the construction rule of the law of affect nations, general of that rule to cases.” particular application Pet. Chief Jus- Percheman, 51, 87, States v. In United tice said: *100 their their relation to their change allegiance; people is but their ancient relations to each dissolved; other, sovereign and their remain undisturbed. If this be property, rights in modern rule even cases of the who can doubt its conquest, the case an amicable cession of application territory? The cession a . . name from one sover- .. territory by idea another, conveying eign compound surrendering lands time the and the- who inhabit at the same them, people understood to would necessarily pass sovereignty only, and not to interfere with private property.” in the court Pollard's Lessee v. 3 How. 212,

Again Hagan, 225 said: nation' or Every territory, otherwise, acquiring by treaty hold it to the constitution must and laws of its own subject and to those of the government, according government it.” ceding And in Rock Island & v.Co. Mc Chicago, Railway . Pacific 114 U. S. 546: “It is a rule law, rec

Glinn, general public and acted whenever States, ognized upon TERM, J., Harlan, Peckham, and Puller, Brewer J,T., C. dissenting. and over political legislative power jurisdiction any are or from- one nation transferred sovereign another, laws laws which is, are municipal country, intended for the continue in force until protection private rights, ab or the new or rogated changed by government sovereign. By the cession from one public property passes government other, remains and property before, with it private those laws which are to secure its municipal designed use and peaceful As a matter of enjoyment. course, laws, ordinances, in conflict with regulations the political character, institutions, and constitution of the new are once at government displaced. Thus, a cession of political jurisdiction legislative the latter is involved the former—to the United —and the laws of States, of an established re country support ligion, freedom the abridging press, authorizing cruel and unusual and the at punishments, would like, once'cease ,to be of force without to that obligatory declaration effect; and the laws of the on other country would subjects necessarily lawrsof the new superseded by existing government upon But same matters. with to other laws respect affecting pos and transfer of use session, secure designed property, order and its health good peace community, promote which are of a strictly character, prosperity, municipal rule that a is leaves them in general change force direct action of new until, government, they altered or repealed.”

When a to the United cession completed of a ratification stated Cross Harri- treaty, 16 How. that the land son, 164, 198,' ceded becomes soon so that as as becomes the terri- acts were force for- tory subject regulate had commerce after those eign ceased had been instituted for its *101 regulation belligerent and the latter ceased after ratification right; treaty. This statement was made the Justice by delivering opinion as the he result of discussion and had al- argument It set forth. he his what ready up supposed summing was decided on that in the he case which was subject writing v. BID WELL. J., JJ., dissenting. Harlan, Peckham, C.

Fuller, Brewer was, new master instance Porto Uni- Eico, The ted constitutional with limited powers, which the Constitution itself or which and the terms imposed, in accordance with the were imposed might on which the new master took terms possession. States to con- The power acquire territory not discovery occupation, disputed, quest, treaty, nor is the international- inter- relations, proposition inde- the United States is a ests, responsibilities separate, it does not derive its nation; pendent, powers sovereign from of our international law, which, part municipal though is not a The law, law of the land. source organic -in national is the Constitution country and the our States; as to internal-affairs, government,, no in- inherent derived possesses sovereign power strument, inconsistent with lett'er and spirit. Doubtless the of the former subjects sovereign brought the transfer under the protection power, acquiring and are sofar forth with its but it does not impressed nationality, follow that the full status of they necessarily acquire citizens. The ninth article Porto to the ceding Eico. natives of provided Spanish subjects, Peninsula, in the ceded remain residing and in territory, remove, might case remained their they to the might crown preserve allegiance a declaration of Spain their decision to do by making so, default of which declaration shall be held to have re- they it and to nounced have adopted nationality reside.” same article also contained this The civil paragraph: status of the rights political native inhabitants of the terri- tories ceded to the hereby United States shall be determined by This was more than Congress.” a declaration of the nothing of international law accepted principles status applicable of and of the native did Spanish subjects It inhabitants. not assume that could inhabitants ceded deprive to which rights entitled. The they might grant could not did it Spain nor enlarge powers Congress,

VOL. clxxxii —24 *102 TERM, 1900. 310 Harlan, Peckham, J.T., Fuller, Brewer J., dissenting. C. secure from the civil or guaranty purport political privileges.

Indeed a to take which undertook what the Con- treaty away stitution secured or to the Federal would be enlarge jurisdiction void. simply “ It need be said that a cannot the Con- hardly treaty change stitution be held valid ir it inbe violation of that instrument. This results from the nature and fundamental of our principles The Cherokee 11 Wall. 620. 616, government.” Tobacco, Mr. So Justice Field in 133 S. U. 258, 267: Geofroy Riggs, “ The in is in treaty terms power, expressed unlimited those in restraints which are found that except by strument the action of or of its against government depart ments, those .from of the the nature arising government itself and that of the It States. would be contended that extends so it far as to authorize what Constitution forbids, or a or in character of the one change government of the States, or a cession of any portion without latter, consent.” it

And cannot be admitted Con- certainly power of. can and collect taxes and duties be curtailed an gress lay made With a nation the President and foreign arrangement two of the Senate. See Tucker on thirds of quorum Constitution, §§ In Constitution itself Judge Cooley: language (cid:127) it never neither enactment; yields changes time nor does it bend to the force of circumstances. theory It amended to its own but while according permission; ‘ it stands is a law for in war and rulers and people, equally and covers with the of its shield classes peace, protection at all men, times and under all circumstances.’ Its principles cannot, therefore, be set aside order to meet the supposed ‘ necessities of crises. doctrine more No great involving perni- cious the wit of was ever invented man than consequences that, of its can be any suspended during provisions any ” great exigencies government.’

I am not in the least reason exists intimating degree' this to be article but even if unconstitutional, regarding v. BIDWELL. Pbckham, Habían, JJ., dissenting. Fusleb, J., Bbeweb C. a fact fact of the cession is accomplished, were, with the concerned court is question duties in commerce with the laying respect so ceded. *103 In of Mr. Justice we find the cer- White, concurring opinion some of which conceded, tain are denied, important propositions “ are to the or not These effect that admitted other. when because not an act of is warranted any challenged, department is to be the the existence as- Constitution, authority has been certained whether conferred by determining power in terms lawful im- either Constitution, express ” that function of is ; derived every government plication “ from the is and that instrument everywhere at all times in so far as its potential provisions applicable;” that wherever a and is the Constitution there power given by is a limitation on the such restriction imposed authority, operates and confines on action within its con- every subject ” stitutional limits; where conditions are about to brought any particular its provision applies, influence cannot be frustrated controlling action or all of the departments of the that the Constitu- government; has tion conferred on to create such munici- Congress right as it deem best for all pal organizations may the territories of every limitation of applicable express the Constitution is in and force, even where there is no express command which there applies, nevertheless be restrictions soof fundamental a nature that cannot be transgressed in so though words; expressed many every provision of the Constitution which is to the territories is con- applicable therein, all the limitations trolling Constitution ap- plicable territories limit governing Congress necessarily its the case of power; when a territories, provision the. of the Constitution is is invoked, whether the question pro- vision relied on is and that applicable; lay power collect taxes, duties, excises, well as the imposts qualifica- tion of restrains an uniformity, Congress imposing impost duty goods into United States from a coming TERM, 1900. . J., Harlan, JJ., C. Peckham, dissenting.

Puller, Brewer into and forms a been has corporated United States. that the determination of

And it is said whether a particular involves an into the situation of inquiry provision applicable relations although does not when the Constitution follow, has withheld power that such an over given subject, necessary. inquiry (cid:127) is stated be: Had at the time Rico, Porto inquiry of the act been into passage question, incorporated and become an And United States?” integral part that it answer had it is held that rule of not, given being was not uniformity applicable. that that is not the

I submit in this case. The question ques- tion is when has whether, created a civil has constituted Rico, for Porto its inhabitants a body'politic, has it a and other governor officers, given legislative assembly, with the courts, can court, appeal in the same act and the exercise of the conferred *104 the first clause of section duties on the commerce eight, impose and the and in Porto Rico other territories con- between rule of the If travéntion uniformity power. qualifying it ifebecause the can be over com- done, power Congress the States and of the territories hot merce.between is re- was the the Constitution. This taken stricted position with a candor and that did him General, the ability Attorney credit. great and the contention seems to be

But that is position rejected, of another that if an and settled organized province sovereignty has to Congress power keep acquired in shade, like a disembodied an intermediate state it, ambigu- more ; and, than-that, ous for an indefinite period existence commercewith it it has called from that is ab- limbo, after been to will of consti- irrespective solutely subject Congress, tutional provisions.

The of this view is to be sustained accuracy supposed of 1856 in act relation to the citizens protection un- but I am islands; States removing guano unoccupied of its un- able to see United States why discharge by WELL. v.. BID JJ., J., dissenting. Beeweb and Peckham, O. Fom.es, Hablan, terra whether nullius, its citizens on doubted duty protect fish, working engaged catching Curing temporarily manure, mines, or furnishes taking away support propo- the territories of the sition that over the power Congress United States unrestricted. as if is thrown the word stress incorporation,” Cheat I it that act take of some occult possessed meaning, under whatever its situation consideration Porto Pico, made before, an of the United States. Being organized such, act duties virtue impose undertaking rule which clause one of section how is it qualifies not of commerce does exercise power apply respect with that ? be exercised as The can power pre- if scribed, even the rule could treated as uniformity a mere a to which regulation granted power, suggestion doI assent, these duties comes validity up directly and it is idle to discuss the distinction between total want of defective exercise it. power The the fact that concurring opinion recognizes Congress, with the of new territories or dealing is bound people possessions, fundamental respect guarantees life, liberty, prop- but assumes that is not erty, bound, those territories to follow the rules of possessions, taxation prescribed by Constitution. And tax yet power involves and the of duties touches destroy, levy all our in all people under the places jurisdiction government. result is that 'logical commerce may prohibit between the

altogether States and territories, may prescribe one rule of taxation in one and a different rule territory, another.

That assumes that the Constitution theory created a govern- *105 ment to empowered countries acquire throughout world, be governed different rules than those obtaining orig- inal States and territories, substitutes for the present sys- tem of a of domination republican government, over system distant in the exercise provinces unrestricted power. our

In so much of the Porto Bican act as judgment, author- m TERM, jC. Hablan, J., JJ., dissenting.

Fueeeb, Beckham, Bbeweb and ized the these duties is were invalid, imposition plaintiffs recover. entitled to made

Some was argument general consequences appre- to flow from this but the result, hended of the Con- language stitution is too its permit plain unambiguous meaning to be thus influenced. There in the literal con- nothing so absurd, struction mischievous, obviously repugnant as to who instrument, those general spirit justify ” a construction war- giving expound ranted words. have been at this on bar,

Briefs to be presented purporting behalf of certain forth the industries, eloquently setting that our should desirability government possess a tariff on the territories so newly impose products acquired as to diminish or remove fur- That, however, competition. and if the no for producers nishes basis judicial judgment, believe the Consti- Union, in the existing staples, to reach the instru- result, so as that be amended tution should amendment can be how such accomplished. ment itself provides are entitled to a voice the settle- the States The people subject. ment behalf on government isit objectéd

Again, is essential acquisition absolute power possession of. should the situ- that we territories, regard distant vast and as it was a “We than century rather ago. as it to-day ation do a as comprehending possibility the situation look at must —I the question might but a possibility not say probability, —that of Egypt of this acquisition as to the powers Africa, or a spot Central or a section Soudan, and the Chinese Empire.” or a section Circle, Antarctic de- Marshall that,-as Story remembered must be itBut and that come, was framed ages the Constitution clared, that a well aware framed were mighty men who the sagacious to which Frank- sun work. The their rising waited future well convention, knew, close of at the referred lin had sixty course years whose Berkeley sung star empire, before. considered trium- have deliberately not indeed

They *106 v. BIDWELL. Hablan, dissenting. Mr. Justice around the nation, such, progress earth, but, phal Marshall wrote: It is that this not enough say, particular case not in the mind convention, was when the article was nor of the American when it framed, people, adopted. It is had this that, farther, necessary say partic- go case been would have been so language ular. suggested, as to been varied, exclude it would have made a it, special exception.”

This cannot in order to said, be on the and, contrary, successful of our extension reasonable institutions, presump- tion is that the limitations on the exertion arbitrary power would have been made more rigorous.

After all, these are arguments merely “political political, reasons have afford rules of requisite certainty judi- cial interpretation.” has to make all laws which shall nec- into

essary execution all the proper carrying powers vested the Constitution in of the United or in or officer thereof. If department the end be and within the legitimate scope then, it, use accomplish all means Congress may appro- which are priate,. to that plainly adapted end, are not but consistent prohibited, with the letter and of the Con- spirit stitution.” grave duty whether an act determining

does or does not with these comply to be requirements discharged by well settled rules which applying govern of fundamental interpretation law, unaffected the theoreti- cal of individuals. opinions

Tested those rules our conviction is that the imposition these duties cannot be sustained.

Mr. Justice Harlan, dissenting.

I concur in the dissenting Chief opinion Justice. The which he and Mr. grounds upon Justice Brewer and Mr. Jus- tice Peckham the Foraker act regard as unconstitutional in the involved this action meet particulars entire my approval. TERM, 1900. Harlan, dissenting. Mr. Justice nor is re- restated, Those need not necessary grounds I cited Justice. examine the authorities Chief agree least after the ratification of the that Porto Pico—at holding the United States within Spain—became *107 the of of the Constitution the section the meaning enumerating “ that of and and duties, powers providing imposts ' excises shall be uniform the United States.” throughout

In of the of the in this view, however, importance questions and of will follow conclusion case, the that consequences reached I redis- the deem it court, by appropriate —without the add some observa- cussing principal questions presented—to delivered in tions in certain just suggested by opinions passages of the support judgment. In one of that the Constitution was those it is said opinions created union of States, of the as a States, the United people also, representatives be'governed solely by States/” to States, find the we Constitution speaking except in and terms, which is absolute its the territorial clause, sug- of no limitations dealing upon gestive -I these I am not sure that with them.” correctly interpret it is meant, if it is as I assume meant, that, But words. ordained Constitution named, the exception "the on the I States, to and addressed States, operates only is cannot that view. accept (cid:127) this 304, 324, 326, court, 1 Wheat. Hunter, In Martin v. “ the Constitution Mr. Justice Story, said speaking by not established, ordained States was United -but as the emphatically, States their sovereign capacities, declares, People preamble United States.” Chief 403-406, In McCulloch v. Wheat. Maryland, “ The Govern: this said: court,

Justice for. Marshall, speaking ‘ordained and es ment from the is directly people; proceeds to be and is declared tablished’in the name the people; ‘in more establish union, ordained, jus perfect order-to.form and secure the ensure domestic. tice, blessings tranquillity, (cid:127) to themselves and their assent liberty posterity.’ a Con- their sovereign capacity, implied calling States, mi v. BID WELL. Hablan, dissenting.. Justice

Mr. instrument thus submitting people. veiition, i£.; accept were at liberty reject But the perfect people not abid affirmance, It final. act was their required The Con- the state could governments. negatived, was of obligation, complete when thus stitution, adopted, . The Government . . the state sovereignties. bound influence of this fact be the Union, then, (whatever may on the is, truly, case,) emphatically,- from them. form emanates Its and substance In people. (cid:127) them, to be exercised and are are directly powers granted by for This Government is acknowl- on them and their benefit. of enumerated It all to be one ... powers. edged by all; all; Government powers delegated by all, all.” and acts represents are constituent

Although parts the Government rests authority people and not on that of the States. Chief Justice the unanimous Marshall, court ill delivering judgment *108 “ v. said: Cohens Wheat. That Virginia, 264, 413, for for States form most and a sin many, important purposes, has not been In nation, denied. we war; are one gle yet peo In we are one In all ple. making peace, commercial people. we are and one the same In regulations, other people. many the American are one; respects, people government which is alone capable their inter controlling managing ests in all these is the Government of the respects Union. It in is their that Government, character have no other. they America has chosen be, and to many respects many pur ; a nation these her poses, Government is purposes to all these if 'is complete; The objects competent. people have declared that in the exercise of all for those powers given it is can, It these objects, supreme., then, objects, effecting control all or individuals legitimately within the governments American territory.”

In reference to the doctrine that the Constitution was estab- lished and for the States as distinct by organizations, political Mr. W ebster said: itself in front its very It that. that it refutes is declares ordained established by TERM, 1900. dissenting. Hablan, Justice

Mr. that it is far saying So of the United States. the People it does States, several established by governments of the several not even that it is established by people say that it was established peo- But it States. pronounces Doubtless, the peo- in the of the United aggregate. ple States constitute people taken of the several States, collectively, ple their collective But is in this capacity, of the United States. it established of the United it is as all the people the Constitution.” assent of this I cannot court,

In view adjudications words it be announced whether express proposition, of or is a National’Government government implication, and limitations and that the union, the States prohibitions That to the States. are addressed of the Constitution created .like the form of but another government saying is a Confederation, the Articles of present by. between them- held mere of States, compact together by league it is a declared, this court has often selves ; whereas, govern- with enumer- of the United ment created People individuals, over States ated and supreme powers, over the entire territory to certain objects, throughout respect is, Government extends. If National its jurisdiction between is a sense, People compact compact, themselves States constituting aggre- among whom the Govern- National community gate political not simply established. The Constitution speaks ment was but to all whether in their peoples, States capacities, organized to the authority who territories, subject 1 Wheat. Hunter, United States. Martin also said that the I am In the to which referring opinion the Constitution interpretation by Congress practical put uniform effect that the Con- continued and has been long *109 or con- purchase is to territories stitution acquired applicable ” direct; shall so that far when and so as Congress quest the same abused, may all while may power government the Constitution as of the Governmentunder said power ” “ be conceded that we are if it once that it; well as outside arises that to foreign territory, presumption at liberty acquire m v. BIDWELL. Hablan, dissenting. Justice Mr. the same to territories is such with power respect

our power exercise to to been accustomed respect have nations other ” that ; them liberality Congress territories acquired our territories into all contiguous the Constitution legislating that went there fostered impression has undoubtedly itself, in the Constitution is but there force, nothing its own to confirm that it, impres- little in the put upon interpretation ” such could only delegate Congress that as the States sion ; no andas had they power themselves possessed, powers in that none to and therefore delegáte new territory, acquire “ if had inference that power connection, logical that not conceded, which is power new territory, acquire ” that if assume we constitutional provisions; hampered intended was not clause of the that the territorial Constitution nited States then' the U to be restricted to such pos- that indicate there Constitution to sessed, nothing intended re- with them was to be dealing other that “the-exec- stricted provisions;” by any .and have utive and of the Government legislative departments for. more than a this silence as century interpreted precluding attached these idea territories as soon as acquired.”

These are words conse- involve weighty import. They most momentous character. I take leave say quences if the thus announced should ever receive the principles of a this radical sanction and mischievous court, majority in our will be the result. We change system in that from the era of constitutional will, event, pass liberty a written constitution an into era guarded protected absolutism. legislative from the foundation of the court

Although Government held view that Government has steadily States was one of enumerated no one of its powers, nor branches could branches, combined, constitutionally or which not im exercise were powers granted, necessarily Hunter, those Wheat. granted, Martin plied expressly are now informed that we 326, 331, Congress possesses outside deal ter- with new powers *110 TERM, 1900. Harlan, dissenting. Justice

Mr. or same manner as ritory, acquired by treaty conquest, other act with nations have been to terri- accustomed respect tories them. Tn has no exis- acquired by my opinion, Congress authority tence and can outside of exercise no the Constitution. Still less is it can deal with new territories true Congress as other nations have or done do with their new terri- just may tories. This nation is under the control of a constitu- written tion, the law of the land and source of supreme which our or Government, branch or officerof powers it, any may exert at time or at Monarchical and any any place. despotic governments, unrestrained written do constitutions, by may with newly territories what this Government acquired may do with our consistently fundamental law. To otherwise say is to concede that action taken outside of the Congress may, Constitution, our institutions a colonial engraft upon republican such as exists under system monarchical governments. Surely a result such never fathers of the Con- contemplated by If stitution. that instrument had contained a word suggesting of .a result of that it would never have possibility character been the United States. The idea People adopted by that this territories country may acquire anywhere upon and hold them as mere earth, or colonies or treaty, conquest them to such provinces inhabiting enjoy only rights people —the to accord to them —is chooses inconsistent wholly as well as with the with the words the Con- spirit genius stitution. The it found idea indeed, prevails expression some— at the have in this bar —that we

arguments country substantially or to be one, two maintained practically national'governments; restrictions; under the with all its other tobe in- maintained outside and of that by Congress independently other nations of strument, such by exercising powers are accustomed to exercise. It is one earth such thing give a latitudinarian construction to the Constitution as will bring a exercise occasion power by Congress, particular a within or It is upon particular subject, provisions. quite if it different so say elects, thing may, proceed of our American Constitution. glory outside system WELL. v. BID Harlan, dissenting. Justice

Mr. constitution written that it was created of government un of arbitrary, exercise against people protects not instrument of which the limits limited power, it,of branch created, passed *111 or amendment it, ordained except who even the people Chief Justice what To purpose,” of its provisions. change “are 137, 176, Cranch, Madison, in Marshall said Marbury com limitation that- is and to what limited, purpose powers time, at passed if limits these may, mitted writing, between a ? The distinction those intended to be restrained if is abolished unlimited with limited and powers government im are on whom do not confine the those limits persons obli if allowed acts and acts equal posed, prohibited gation.” men who and the

The wise framed the patriotic who were for their it, depend safety adopted unwilling people is described as certain referred what, to, opinion upon in of natural inherent character justice Anglo-Saxon principles no or which need constitutions statutes to expression give or to secure them effect mani- dependencies against legislation hostile to their real interests.” festly They proceeded upon wisdom of which has vindicated—that theory experience —the safe was to guaranty against governmental oppression or restrict the withhold well remem- oppress. They that across ocean bered had in de- Anglo-Saxons attempted, of law and fiance justice, upon trample rights Anglo- on this continent and had Saxons force, to sought, by military establish that could at will government destroy privileges that inhere believed that the establishment liberty. They of a here could administer affairs ac- government public to its unrestrained will fundamental law and cording by any without to the inherent would freemen, be ruin- regard rights ous to the liberties of the them to the people by exposing op- Hence, the Constitution enumer- pressions arbitrary power. ates the which the other powers Congress Departments the States may unimpaired, leaving People, exercise— to the National nor Government powers delegated pro- That hibited to the States. instrument so declares in expressly TERM, 1900. Harlan, dissenting. Mr. Justice Article of It Tenth Amendment. will be an evil day American if the of a liberty theory outside of land law the finds our supreme lodgment- constitutional' No rests duty jurisprudence. higher court than to exert its full all violation of authority prevent principles óf the Constitution. n it is said that has Again, in its Congress assumed, his- past that the Constitution into territories tory, goes acquired by pur- chase or when and as it shall conquest only so direct, we are informed liberality legislating Constitution into all our territories. This a view contiguous of the Constitution that well cause if not alarm. surprise, as I have has no observed, existence Congress, virtue except It is the creature of the Constitution. Constitution. It has no instrument has not powers granted, expressly I confess that I cannot necessary implication. grasp lives moves and has its thought being mere creature of consequently *112 at can, its or instrument, exclude pleasure, legislate creator territories were only acquired by authority of the Constitution. the words of the Constitution, Senator

By and express every bound, oath or affirmation, it as Representative regard the law When of the land. the Constitutional Con- supreme much vention was there was session discussionas to the phra- of of the the the clause supremacy seology defining Constitution, and United laws treaties of the States. At one stage pro- “ the the Convention clause: This ceedings adopted following laws of United Constitution, and the the States made pursu- ance the made under thereof, all treaties the of authority the United Ofthe States, shall the law several supreme States and of their citizens and and the of inhabitants, the sev- j'udges eral States shall be bound in their thereby decisions, anything in the or laws of the several constitutions States to the contrary This clause was amended, on motion notwithstanding.” of after the words “all Madison, Mr. treaties by inserting made” “ the or words which shall be made.” If the clause,so amended, had been inserted in the Constitution as finally adopted, per- v. BIDWELL. Hablan, Justice dissenting.

Mr. have been some saying would justification there haps consti- States and treaties laws Constitution, the of that outside in the States, law only tuted supreme framers But the will supreme. the States such put saw provision, danger of the Constitution clause the of the above following: into that instrument place laws of the United States “This or made, all treaties thereof, be made shall pursuance of the United under the be made, authority which shall and the law the every la/nd; judges shall be the supreme constitution or be bound State shall thereby, anything Meigs’s to the notwithstanding.” State contrary laws That the Convention Constitution, 284, Growth ” “ the several States law out the words struck supreme “ fact of no little is a law of the land,” and inserted supreme ” “ embraced land referred manifestly significance. without or whether within and all territory, peoples exercise the United States could jurisdiction over which or authority. that someof the it is admitted the Con

Further, provisions Pico and do to Porto invoked as limit stitution apply or for authority restricting Congress, protection ing that island. And it is said is a clear that there people such root between distinction prohibitions very go to act at of time or all, of Congress irrespective ‘ and such as are operative throughout place, ’ the several States.” In the enforcement among delivered : it is in one of said suggestion opinions just of attainder the Constitution thate no bill Thus, when declares ‘ title of no or ex law shall be that no post passed,’ facto com States,’ shall be goes bility granted I can a bill that description.” petency Congress pass *113 or consistent as with Constitution accept reasoning n with sound The rules of prohibition interpretation. express or of ex of bills of attainder, post by Congress passage no more of titles of or the laws, nobility, goes granting facto does the ex than to the root directly power Congress of any against by Congress press prohibition imposition TERM, 38é Hablan, dissenting. Mr. Justice or excise that is not uniform duty, impost throughout The States. I take United. leave theory, is opposite say, as that which assumes that extraordinary quite exercise outside of the Constitution, and may powers inmay, that discretion, instrument into or out of legislate a domes tic the United States.

In I to which have referred it opinion that suggested arise conditions when the may annexation of distant possessions “ be desirable. If,” those may says opinion, possessions inhabited alien from in races, us cus- differing religion, methods toms, laws, taxation and modes the ad- thought, ministration government justice, according Anglo- Saxon for a time be may and the principles, impossible; ques- at once tion arises whether concessions not to be large ought for a time, made our own theories be ultimately car- may and the out, ried of a free under the blessings Con- extended to them. We stitution decline to hold that there is in the Constitution to forbid such action.” In anything, my the Constitution does not sustain such judgment, theory a Whether race will system. particular our or governmental with our not assimilate whether can will or people, to our with institutions be cannot within the brought safety is matter to be of when thought operation their A it' is mistake acquire territory by treaty. proposed such territory, seemed acquistion although acquisition be to be cannot made the at the time necessary, ground or the Constitution full effect to its violating refusing give not to be The obeyed disobeyed provisions. in our the circumstances of crisis history particular may or the other the one course to The Peo- pursued. suggest law of bave decreed that shall be the the land at ple supreme becomes times. When complete, acquisition the Constitution becomes the cession, necessarily supreme new law- of such and no exists in territory, power any Depart- ” ment of the Government to make concessions that are in- consistent make such con- authority provisions. .its the existence in cessions to declare implies constitutional under ignored provisions special *114 y. BIDWELL. Harlan, dissenting. Me. Justice No such circumstances. exists dispensing embarrassing power of our Government. Constitution is su- in branch any foot of wherever under situated, territory, over every preme its full of the United cannot operation jurisdiction in of the Government order to branch meet stayed by any to be If what some extraordinary may suppose emergencies. it is in in in the Constitution is force force there territory, any for which for embraced the Gov- objects every purpose cannot be Its ernment was ordained. authority displaced by in if in even it be as asserted some of true, concessions, argument if the act took effect these tariff cases, Philippines who live on force, Mandanao, the inhabitants of its own imported fold would because the more rice, starve, duty many import than the cost of the to them. The ordinary grain meaning accidental Constitution cannot circumstances depend upon out of or of other countries this products country. arising We cannot violate the in order to Constitution serve particular in our own or in Even interests lands. with court, foreign its tremendous must heed the mandate of the Constitu- power, tion. No one in official to whatever station, department Government he can its commands without vio- belongs, disobey of the oath he has taken. whomsoever lating obligation By and wherever is exercised the name and under the of the United or of branch of its Govern- authority of that which is done must ment, validity invalidity determined Constitution.

In DeLima v. we have held that Bidwell, decided, just upon ratification of the with Rico Porto ceased to treaty Spain, be a a domestic became country foreign territory We States. have said in that case that from 1803 to time there not a shred of a present authority, except a one for that district ceded to and case, dictum holding States remains for for- a any purpose possession ” so cannot be domestic territory; acquired eign ” for another and that ; for one purpose foreign any judg- “be ment would contrary pure judicial legislation,” was no warrant which there powers this court. have decided, conferred we Although, just olxxxii—25 VOL. TERM, Harlan, dissenting.

Mr. Justice Porto Rico after ceased, the ratification of the Spain, to be a within the act, tariff foreign country meaning became domestic of the United country —“ States ”—it is said that if so wills it be controlled *115 outside the Constitution and the exertion governed by which other nations have been accustomed to powers exercise with to territories them.; respect other acquired by we words, solve the may question power under the Constitution, to the by that be referring powers may exercised other nations.' I cannot assent to this view. I that in its reject altogether discretion, can theory Congress, exclude the Constitution from a domestic of the United territory and which could have been acquired, acquired, virtue of the Constitution. I cannot that it is a domestic agree of the United States for the territory purpose preventing of the tariff act duties application imposing upon imports countries, but not a of the United States for the foreign that purpose enforcing requirement constitutional “ duties, excises shall uni be imposts imposed by Congress form the United States.” How Porto Rico can be throughout a domestic of the United held in territory distinctly is now DeLima v. not embraced Bidwell, held, yet, “ the words is more than I States,” can throughout understand.

We heard much in about the future argument “expanding our It was said that United States is to country.” become ” “ what is called that if a world this Government power; intends to and be abreast times keep equal great that awaits the American destiny must allowed to people, exert all the that other nations are accustomed to power exer- cise. answer that never intended is, the fathers that My and influence of this authority nation should exerted other- wise than accordance with the If our Constitution. Govern- ment needs more than is conferred the Con- that instrument mode in stitution, which it provides be amended and additional obtained. The Peo- power thereby of the United States who ordained Constitution never ple could in our be made supposed change system govern- -BIDWELL. Hablan, dissenting.

Mr. Justice ment mere never judicial interpretation. They contemplated such with the words of the Constitution as 'would juggling the courts to hold that the words authorize throughout clause of do not States,” taxing ” embrace a domestic the United States having civil established of the United authority unable to make, States. This is a distinction I am which I do not think to be. made when we are endeavor- ought to ascertain the of a instrument ing great govern- meaning ment.

There are other I desire to In matters to which refer. one delivered the case v. Henkel, opinions just Neely U. S. is cited support proposition provi- sion of the Foraker act here involved was consistent with the If Constitution. had not asserted I been should contrary have said that case did not have the judgment slight- est on the before us. The there bearing question only inquiry was whether Cuba was a within foreign country *116 not of the tariff act but of the meaning act June 6,1900, 31 Stat. c. 656, 793. We held it that was a foreign country.

We could not have held otherwise, because United States, when the existence of war between recognizing and country disclaimed or intention Spain, to exercise sov- disposition or control jurisdiction over said ereignty, island for the except and thereof,” asserted pacification “its when determination, to leave the accomplished, and control of government the island to its We said: “While people.” the act of by 25, 1898, April war between this and declaring country Spain, was directed president and to use our entire land empowered and naval forces, as well as the militia of the several States to such an extent as was such áct into effect, necessary, carry that authorization was for an Cuba purpose making integral part United for the States, purpose compelling its relinquishment by Spain authority in that island government and the withdrawal of its forces from Cuba Cuban waters. The and executive branches legislative of the Government, resolution of by joint April disclaimed expressly to exercise any purpose sovereignty, juris- TERM, Hablan, dissenting.

Mr. Justice ‘ over diction control Cuba for the there- except pacification and asserted the determination of the of,’ United to leave the being control object accomplished, government of Cuba its own All that has been done in people. relation has had that and, Cuba end so far view, as this court is informed relations of this history public country with that island, has been done inconsistent with the nothing declared of the war with Cuba is none the object Spain. less . Avithin the of the act foreign territory, meaning Congress, because it is under a Governor Military appointed by rep-, President the work of resenting inhabitants assisting island to establish a of their under own, government as a free and which, control their independent people, they may affairs without OAvn interference other nations. The occu- of the island of the United States was the pancy troops result of the war. That result could not have necessary been avoided States with consistently principles of international law or obligations Avith people true that as between It is the United Cuba. Spain States and between nations —indeed, foreign of hostilities cessation —Cuba, after the. Spain Avasto be treated as if it of Paris Avere the Treaty conquered the United States and But as between Cuba, that territorj". in trust the inhabitants of held Cuba to island and to Avhose exclusive whom control belongs, rightfully stable will when a shall have be surrendered been action.” In their answer to the established voluntary sug- of trial under the modes there if that, adopted, Neely, gestion denied the Avouldbe and im- Cuba, taken rights, privileges our Constitution to Avith munities accorded by persons charged Avesaid that the crime constitutional against “to have no relation to crimes committed referred provisions *117 States without the United laws of against jurisdiction be made of that case What use can in a order foreign country.” in is not in force that the Constitution prove territory as the United States treaty, except Congress acquired may is can more than I perceive. provide, case. There taken view still Conceding another is v. BIDWELL. Hablan, dissenting. Me. Justice one of enumerated Government is that the National powers in defined the Constitu- for the limited be exerted only objects no as and that has tion, Congress except given power, it is or either necessary instrument implication, expressly said that a new by treaty conquest, territory, acquired yet without the into the United States cannot become incorporated meant such "What is consent incorporation Congress. we instructed nor are we are not informed, pre- fully no ter- course, to be cise mode is Of accomplished. of a or without can become a State virtue treaty ritory for Government; branch of the consent only legislative to admit new is Constitution Congress given power whether a do- States. But it is an different entirely question an States,” mestic of the United having organized territory not, civil established pur- by Congress, government, Nation, under by'the complete juris- poses incor- of, diction of the States and therefore a part to all into, States, porated subject authority which the National Government exert over may any If Porto Rico, the United people. although territory be treated as if it were not a States, may part then New Mexico and Arizona treated as may of the United to such subject legislation parts choose to enact without to the re- reference Congress may strictions the Constitution. The admission that no imposed by can be exercised under and of the United by authority States accordance with the Constitution is of no except prac- value tical whatever constitutional if, as soon as the liberty admission is made—as as the words quickly expressing can be uttered —the so inter- thought liberally as to same results as those which flow pretated produce the from the outside of the Constitu- theory go tion with them territories, dealing newly acquired give benefit that instrument and as it shall when direct. it for a Can moment be doubted that the -addition of Porto Rico of the United in virtue of treaty has been direct action Spain recognized by ? it not of. Has of that legislated recognition *118 TERM, 1900. Hablan, dissenting.

Mr. Justice country this and the money required appropriated pay? the

If,, virtue of of with and the ratification by Spain, amount which that appropriation treaty required n Rico could not Porto become country pay, part United so as to be embraced the words States by “throughout did it not become States,” into the “incorporated” when act Foraker ? 31 Stat. passed Congress c. did that act do It 191. What ? a civil provided govern- for ment Porto and Rico, executive de- legislative, judicial for ; also, and partments appointment by President, by with the and advice consent the Senate of the United States, “ of a governor, treasurer, auditor, secretary, general, attorney commissioner interior a commissioner education.” 17-25. It for an executive council, members provided §§ of which should be the President, and with by appointed the advice and consent the Senate. 18. The governor § was all required transactions report Porto Rico the President of the United States. Pro- 17. § vision was coins of the>United made States to take the All of Porto Rican coins. laws enacted place § Porto Rican were to be legislative assembly required reported the-United reserved amend same. 31. But that authority not was all. § as otherwise also the Except except internal reve- provided, nue laws, laws statutory locally are to have the same force effect in Porto Rico inapplicable, United States. 14. A judicial department § established Porto with a to be Rico, judge appointed by and with President, the advice consent of the Sen- ate. 33. The so to be court, established, was known as § the District Court the United States for Porto Rico, which writs of error and to be were allowed to this appeals court. 34. All it was judicial process, shall run provided, § in the name of the United States of and the America, Presi- dent the United States.” And it is said that Porto yet §16. Rico was not the Foraker act into the “incorporated” Uni- States so as to ted of the United States within the v. BIDWELL. Hablan, dissenting.

Me. Justice duties, the constitutional requirement meaning uniform shall excises imposed imposts States.” the ITnited throughout that even the theories of some, seem, according It would *119 States for in and of many important is Rico if Porto with the country privilege it is a part yet purposes, which ex- of taxation rule against protesting as to any adopting the Constitution forbidden by pressly this result comes from the And of the “United States.” part in the Fora- word to use the “incorporate” of Congress failure exercised the same act by ker act, although Rico is Porto authority civil ,by been this court has jurisdiction although given the final of error to reexamine judgments appeal writ States established Congress Court District this act: “Be it had that territory. Suppose Congress passed the Senate and Souse enacted Representatives Congress into That Porto Rico be assembled, hereby incorporated as a would the United States such a statute have territory,” or effect of the Foraker act? Would such scope enlarged have more than a statute the Foraker act has accomplished ? would not such Indeed, done have been legislation regarded most as well as extraordinary ? unnecessary constrained I am that this idea of say “incorporation” occult mind has some does not my meaning apprehend. I It is some which am unable to unravel. enveloped mystery at In Porto Rico became, least after the ratifica- my opinion tion of of and Spain, subject juris- diction of the United of all its respect could not thereafter im- people, impose duty, or excise with to that island and its respect inhabitants, post from the rule of established departed uniformity Constitution. notes other) (among 25. Is it Page true that the United States have no to right an alienate inch the territory the case question, except intimated in another ? Or will it be useful necessity place of such the denial a % It is right to avow that apprehended restricts alienation of doctrine which to cases of territory is rather to extreme than necessity applicable peopled territory waste and uninhabited districts. Positions to restraining States to to of the United which exigencies accommodate arise to be advanced with ever caution.” Ford’s may ought great Jefferson, 443. vol. v, Writings p. commented note, Mr. Jefferson as follows: Kespecting “ The to alienate the territories of State unpeopled power not is enumerated by among given powers, to the if out and we of that instru- general government, may go alien- ment accommodate to arise map exigencies by of a accommodate we State, may ating unpeopled territory ourselves little more that which by peopled, alienating a little more A shade or still themselves. by people selling more is all that will be two degree exigency requisite, and of that we shall However, ourselves degree judges. to not be are forever laid rest these hoped questions the Twelfth Amendment once made a the Constitu- by ‘ the tion, powers expressly declaring delegated v. WELL. BID concurring. McKenna, White, Seibas Justices the States re- are reserved to tbe Constitution States to has no And if the general spectively V an it is too irresistible State, argument alienate territory Ib. it on the occasion.” use of present to ourselves deny met Jefferson, however, of Mr. approval The opinions inclosing 18, 1792, March On President 'Washington. he said, their commission, among commissioners Spain other things: commission; as also obser- will receive your . “You herewith to the President and several vations these reported subjects instructions for will therefore serve him, which approved of our the sense government, minutely These expressing you. for me to done, unnecessary to have and what wish unremit- these objects do more here than desire you pursue v, vol. Jefferson, etc. Ford’s p. Writings tingly,” related is to which the When the negotiation subject-matter ” evident that the word State considered it becomes as above which was either used related claimed territory merely some of States, Mississippi Territory by Georgia, n within the embraced the Northwest ordinance Territory south of Ohio or the had (Tennessee), been, also endowed conferred rights privileges and all which had ordinance, been originally ceded the United States under stipulations express