10. That the "practical interpretation put by Congress upon the Constitution has been long continued and uniform to the effect that the Constitution is applicable to territories acquired by purchase or conquest only when and so far as Congress shall so direct.

11. That "the power to acquire territory by treaty implies not only the power to govern such territory, but to prescribe upon what terms the United States will receive its inhabitants, and what their status shall be."

12. On these grounds the opinion was expressed that the island of Porto Rico "is a territory appurtenant and belonging to the United States, but not a part of the United States within the revenue clauses of the Constitution; that the Foraker act is constitutional, so far as it imposes duties upon imports from such island, and that the plaintiff can not recover back the duties exacted in this case."

Mr. Justice White, with whom concurred Justices Shiras and McKenna, united in the judgment announced by Mr. Justice Brown, but for reasons" different from, if not in conflict with, those expressed" by the latter. The grounds maintained by Mr. Justice White were as follows:

1. That it should at the outset be conceded (1) that, as the Government of the United States was born of the Constitution, all its powers must be derived, either expressly or by implication, from that instrument; (2) that consequently the Constitution "is everywhere and at all times potential in so far as its provisions are applicable;" (3) that, wherever a power is given and a limitation imposed upon it, the restriction "operates upon and confines every action on the subject within its constitutional limits;" (4) that, where the Constitution applies, its controlling interest can not be frustrated by the action of any or all of the departments of the Government; (5) that the Constitution has conferred on Congress the right to create such municipal organizations as it may deem best for all the territories of the United States, but that, even where no express limitation may be applicable, there may be restrictions of so fundamental a nature that, although not expressed in words, they can not be transgressed; (6) that as Congress, in governing the territories, is subject to the Constitution, all its applicable provisions are, as held even by the dissenting judges in

@Marbury . Madison, 1 Cranch, 176; Martin e. Hunter, 1 Wheat. 326; New Orleans v. United States, 10 Pet. 662, 736; Geofroy . Riggs, 133 U. S. 258, 266; United States v. Gettysburg Electric Ry., 160 U. S. 668, 679, and cases cited.

The City of Panama, 101 U. S. 453, 460; Fong Yue Ting v. United States, 149 U. S. 716, 738.

Monongahela Navigation Co. v. United States, 148 U. S. 312, 336; Interstate Commerce Commission v. Brimson, 154 U. S. 447, 479; United States r. Joint Traffic Association, 171 U. S. 571.

d United States v. Kagama, 118 U. S. 375, 378; Shively r. Bowlby, 152 U. S. 1, 48. H. Doc. 551-21

the Dred Scott case," controlling therein; (7) that in every case, when a constitutional provision is invoked, the question is, not whether the Constitution is operative, which is self-evident, but whether the particular provision is applicable; (8) that the clauses empowering Congress to lay and collect taxes, duties, imposts, and excises," and requiring uniformity throughout the United States, although they do not relate to or restrain the power of Congress to levy local taxes for local purposes within the territories, restrain Congress from imposing duties on goods coming into the United States from a territory which has been incorporated into and forms a part thereof."

2. That the determination whether a particular provision is applicable involves, generally speaking, an inquiry into the situation of the territory and its relations to the United States; e. g., it has been held, even in the case of incorporated territories, that, while the provision as to the life tenure of judges is inapplicable, the provision as to common law juries is operative, although the latter provision has been held inapplicable in consular courts.

3. That a distinction exists between restrictions which regulate a granted power and those which withdraw all authority, and that the "absolute withdrawals of power which the Constitution has made in favor of human liberty are applicable to every condition or status."

4. That the sole issue therefore was whether the tax in question was levied in violation of the Constitution; and this depended upon whether Porto Rico had, when the act was passed, "been incorporated into and become an integral part of the United States."

5. That every government which is sovereign within its sphere of action possesses the inherent power to acquire territory by discovery, treaty, or conquest, and "that, under the Constitution, the Government of the United States, in virtue of its sovereignty, supreme within the sphere of its delegated power, has the full right to acquire territory enjoyed by every other sovereign nation.”ƒ

a19 How. 393, 542, 614.

Loughborough . Blake, 5 Wheat. 317, 322; Woodruff v. Parham, 8 Wall. 123, 133; Brown e. Houston, 114 U. S. 622, 628; Fairbank v. United States, 181 U. S. 283.

American Ins. Co. v. Canter, 1 Pet. 511; Benner v. Porter, 9 How. 235; Webster v. Reid, 11 How. 437, 460; Clinton e. Englebrecht, 13 Wall. 434; Reynolds v. United States, 98 U. S. 145; Callan r. Wilson, 127 U. S. 540; McAllister v. United States, 141 U. S. 174; Springville r. Thomas, 166 U. S. 707; Baumann v. Ross, 167 U. S. 548; Thompson v. Utah, 170 U. S. 343; Capital Traction Co. v. Hof, 174 U. S. 1; Black v. Jackson, 177 U. S. 363.

d In re Ross, 140 U. S. 453, 461, 462, 463.

€ 20 Congressional Globe, Appendix, 272, 281–282; Stanwood, History of the Presidency, 218, 253, 254, 271; Chicago, Rock Island, &c., R. R. Co. v. McGlinn, 114 U. S. 542, 546.

Halleck, International Law, 76, 126, 814; American Ins. Co. v. Canter, 1 Pet. 511; United States. Huckabee, 16 Wall. 414, 434; Mormon Church v. United States, 130 U. S. 1; Shively r. Bowlby, 152 U. S. 50; 26 Stat. 1497.

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6. That, by the general principles of the law of nations, acquired territory, in the absence of an agreement to the contrary, will bear such relation to the acquiring government as may be by it determined, that this power is "absolutely inherent in and essential to national existence," that it belongs to the United States under the Constitution, and that it may be exercised by Congress in time of peace as well as by the military arm in time of war."

7. That the theory that the treaty-making power can not acquire territory conditionally is refuted by the history of the United States from the beginning.

8. That, when the Constitution was adopted, the United States consisted, both in the international and the domestic sense, of States and territories whose native white inhabitants were endowed with citizenship and possessed various common rights and privileges; that the opinion which prevailed in the Louisiana cession was, that, although the treaty might stipulate for incorporation and citizenship under the Constitution, such agreements were but promises, depending for their fulfillment on the future action of Congress; that a similar view prevailed in the acquisition of Florida; that the rule acted upon in the case of the Mexican territory was that, where the treaty in express terms brought the territory within the boundary of the United States and provided for incorporation, and the treaty was expressly or impliedly recognized by Congress, its provisions ought to be given immediate effect; that the same rule was acted upon in the case of Alaska, the treaty of cession containing, among other things, an express provision excluding from citizenship the uncivilized native tribes; and that the Thirteenth Amendment, which speaks of "the United States, or any place subject to their jurisdiction," obviously recognizes that there may be places subject to the jurisdiction of the United States which are not incorporated into it.

9. That it is indubitably settled by the principles of the law of nations, by the nature of the government created by the Constitution, by the express and implied powers conferred upon that government, by the mode in which those powers have been exercised, and by an unbroken line of judicial decisions, that the treaty-making power can not incorporate territory into the United States without the express or implied assent of Congress; that it may insert in a treaty conditions against immediate incorporation, although, when the treaty contains conditions favorable to incorporation, they will, if the treaty be not repudiated by Congress, have the force of a law of the land and by their fulfillment cause incorporation to result.

@Johnson v. McIntosh, 8 Wheat. 543, 595; Martin v. Waddell, 16 Peters, 367, 409; Jones v. United States, 137 U. S. 202, 212; Shively v. Bowlby, 152 U. S. 1, 50; Fleming v. Page, 9 How. 603; Cross v. Harrison, 16 How. 164,

10. That the treaty of Paris did not stipulate for the incorporation of Porto Rico, but expressly provided that the "civil rights and political status of the native inhabitants" should be determined by Congress; and that the provisions of the act of Congress, under which the duty in question was imposed, manifested the intention of Congress that for the present the island should not be incorporated into the United States.

11. That, in consequence, while in an international sense Porto Rico was not a foreign country, it was foreign to the United States in a domestic sense, and, not having been incorporated into the United States, was merely appertaining thereto as a possession.”

12. That, as a necessary consequence, the impost assessed on merchandise going from Porto Rico into the United States after the cession was within the power of Congress, the clause requiring imposts to be uniform "throughout the United States" not being applicable to it."

Mr. Justice Gray, concurring in the judgment of the court, **and in substance agreeing with the opinion of Mr. Justice White," observed (1) that the Government of the United States possessed the power of acquiring territory either by conquest or by treaty; (2) that, where territory is acquired by war, there must of necessity be a “transition period" between military government, under the control of the President as commander in chief, and civil government, which can only be put in operation by the action of the appropriate political department of the Government, at such time and in such degree as that department may determine;" (3) that, although in such case "civil government must take effect either by the action of the treaty-making power or by that of the Congress," the treaty of cession usually leaves the government and disposition of the territory to the Government of the United States; (4) that this was recognized in the treaty with Spain, which, besides declaring that "the civil rights and political status of the native inhabitants" of the ceded territory should be determined by Congress, also contained (Arts. IV. and XIII.) provisions as to duties which could not be carried out if the United States customs regulations were Constitutionally applicable; (5) that, in the absence of Congressional legislation, the regulation of the revenue of the conquered territory, even after the treaty of cession, remains with the executive and military authority; (6) that,

@ Mr. Justice White, in the course of his opinion, cited Neely v. Henkel, 180 U. S. 109, as showing that Cuba was not incorporated into the United States, but remained a foreign country, in spite of the fact, as he declared, that, in virtue of the American occupation under the treaty of peace, the sovereignty of the United States extended over and dominated the island till the legislative department of the Government of the United States should determine that the occupation should cease.

American Ins. Co. v. Canter, 1 Pet. 511, 542.

"so long as Congress has not incorporated the territory into the United States," it does not become domestic territory in the sense of the revenue laws, but the provisions of those laws concerning "foreign countries" remain applicable to it, as was unanimously declared in Fleming v. Page, 9 How. 603, 617; (7) that, "if Congress is not ready to construct a complete government for the conquered territory, it may establish a temporary government, which is not subject to all the restrictions of the Constitution;" (S) that such was the effect of the act of April 12, 1900, and that "the system of duties, temporarily established by that act during the transition period, was within the authority of Congress under the Constitution of the United States."

Chief Justice Fuller, with whom concurred Justices Harlan, Brewer, and Peckham, dissenting, maintained (1) that the uniformity of taxation required by the Constitution was a "geographical uniformity, and is only attained when the tax operates with the same force and effect in every place where the subject of it is found; "a (2) that the territories as well as the District of Columbia are part of the United States for the purposes of national taxation; (3) that "the imposition of duties on commerce operates to regulate commerce, and is not a matter of local legislation," and that the duties in question were levied "in the exercise of the national power to do so, and subject to the requirement of geographical uniformity:" (4) that the Government of the United States "is a government of enumerated powers," and that the prohibitory clauses of the Constitution are effective in the territories and the District of Columbia; (5) that in the cases in which it was decided that the Constitutional provision as to judicial tenure did not apply to the territories it was not held that they were not part of the United States and the power of Congress over them unlimited, nor was there the least intimation to that effect; (6) that, although endowed with independent sovereignty and with power to acquire territory, the Government of the United States, deriving all its powers from the Constitution, possesses, as to internal affairs, no inherent sovereign power not derived from that instrument or inconsistent with its letter and spirit, nor can the power of Congress to lay and collect duties be curtailed by a treaty; (7) that, although the inhabitants of annexed

a Knowlton v. Moore, 178 U. S. 41; Head Money Cases, 112 U. S. 594. Loughborough . Blake, 5 Wheat. 317; McCulloch . Maryland, 4 Wheat. 408; License Tax Cases, 5 Wall. 462; Knowlton v. Moore, 178 U. S. 41.

Stoutenburgh v. Hennick, 129 U. S. 141.

d Marbury v. Madison, 1 Cranch, 176; The Passenger Cases, 7 How. 492; Cross v. Harrison, 16 How. 197; Dred Scott r. Sanford, 19 How. 393; Yick Wo r. Hopkins, 118 U. S. 356; Capital Traction Co. v. Hof, 174 U. S. 1; Callan r. Wilson, 127 U. S. 550; Thompson v. Utah, 170 U. S. 343; Opinion of Judge Edmunds, Cong. Rec., 56 Cong. 1 sess. 3507; United States v. Morris, 1 Curtis, 50.

e American Ins. Co. v. Canter, 1 Pet. 511; McAllister v. United States, 141 U. S. 174. ƒ2 Tucker on the Constitution, §§ 354, 355, 356; The Cherokee Tobacco, 11 Wall. 620; Geofroy r. Riggs, 133 U. S. 267.