Chapter CXII: Section 29 (32)

"The Government contends that the term 'foreign countries' in
the act of 1897 is to be regarded as having been understood by
Congress to be subject to the rule of interpretation of the
phrase given by the Supreme Court in the case of Fleming v.
Page, where it was held that under our revenue laws every port
is regarded as a foreign one until expressly established as
domestic under the authority and control of the statutes of
the United States.

"That the clause of the Constitution which declares that
duties, imposts, and excises shall be uniform throughout the
United States does not apply to nor govern these cases,
because the term 'United States,' as there used, means only
the territory comprised within the several States of the
Union, and was intended only for their benefit and protection,
and not for the benefit or protection of outside territory
belonging to the nation; that in the latter sense duties on
imports from these islands are uniform throughout the United
States, because they are uniformly imposed at every port in
the United States, so that there is no preference given to the
ports of one State over those of another, nor is any
inequality between the several States created.

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"That the right to bring merchandise into the United States is
a right entirely within the regulation of Congress; such right
in no wise differs as to either citizens or aliens.
Citizenship carries with it no special or peculiar privileges
at the custom-house. The American, the Spaniard, the Porto
Rican, are treated alike. The basis of the customs laws is not
ownership, but (1) the geographical origin of the shipment,
and (2) the nature of the goods. The duty is imposed against
merchandise, not upon the importer. "The Government contends,
therefore, that in view of the fact that tariff laws are 'in
rem,' there is no principle of justice, much less of
constitutional restriction, which forbids Congress from taxing
in this way the merchandise of outlying possessions of the
United States when brought into the ports of the Union. That
the limitations of the Constitution as to customs, etc., were
intended to secure equality between the States in the
geographical sense, and not to forbid Congress from exercising
the ordinary sovereign power of taxation as to the products of
other sections of country not included within the geographical
boundaries of the States; for which we rely upon the opinion
of this court in Knowlton v. Moore as decisive and conclusive.

"If the foregoing propositions are sound, then it is
established (1) that the tariff act of 1897 was intended by
Congress to classify as foreign all countries not a part of or
belonging to the United States at the time of its passage, and
the subsequent cession of the Spanish islands to the United
States did not operate to admit imports from those islands
free of duty, under that law; (2) that the tariff act so
construed and enforced violates no constitutional rule of
uniformity.

"And the case of the plaintiffs in error would seem on these
grounds to have no legal foundation.

"The Government might well be content to rest its argument
upon these propositions. But counsel for the plaintiffs in
error, in the court below as well us in this court, have gone
far beyond these limits, and have challenged and denied the
constitutionality of certain provisions of the treaty of
Paris, contending that the cession of Porto Rico and the
Philippine Archipelago effected a complete incorporation of
those countries with the United States, so that they have
become a part of the United States in the fullest and largest
sense, not only internationally, but organically, so
completely, indeed, that no difference or distinction can be
made by law between imports from those countries and imports
from one of the States of the Union.

"They insist that there can be no limited or qualified
acquisition of territory by this nation; that when Porto Rico
was ceded to the United States it came at once under the
obligations of the Constitution and became entitled to the
privileges of the Constitution, its inhabitants citizens of
the United States, and its territory a part of the United
States. They argue, therefore, that the clause of the treaty
which says that 'the civil rights and political status of the
inhabitants shall be determined by the Congress,' in so far as
it is intended to defer the full enjoyment of the rights and
privileges of citizenship under the Constitution until
Congress shall bestow them hereafter upon the inhabitants, is
'ultra vires' and void, or at least superfluous and
ineffective, because the Constitution 'ex proprio vigore'
extends at once, as an automatic operation, to all territory
ceded to this Government, and no treaty or treaty-making power
can hinder or even suspend it. …

"Counsel have been at great pains to prove that the Government
of the United States is one of delegated powers, and that its
powers are not absolute and untrammeled, but subject to
certain limits never and nowhere to be transcended; that the
vague political entity known as The People stands behind the
constituted agencies of government, holding in reserve the
sources of supreme power, capable and ready to alter or
destroy at its pleasure the machinery heretofore set up in its
behalf. They call these doctrines truisms, and so they are.
They do not help us in this case.

"The Government of the United States has been vested not with
all powers but only with certain particular powers. These
particular delegated powers are in some respects limited and
confined in scope and operation, but in other respects they
are entirely unlimited. So that the real and practical
question is whether there is any limitation preventing the
particular thing here complained of.

"It is worth while, in passing, to allude to the undeniable
fact that 'The People' referred to are not the people of the
Territories or of the outlying possessions of the United
States, but the people of the several States, who ordained and
established for themselves and their posterity the Federal
Constitution.

"Counsel confuse ideas when they argue that the contention of
the Government in these cases implies the possession by
Congress of all unlimited and despotic powers in the
government of territory. We mean no more than this court meant
when it said:

"'The power of Congress over the Territories is general and
plenary.

"'Its sovereignty over them is complete.

"'It has full and complete legislative authority over the
people of the Territories and all departments of the
Territorial governments.

"'The people of the United States, as sovereign owners of the
National Territories, have supreme power over them and their
inhabitants.

"'In legislating for the Territories Congress would doubtless
be subject to those fundamental limitations in favor of
personal rights which are formulated in the Constitution and
its amendments, but these limitations would exist rather by
inference and the general spirit of the Constitution than by
any express and direct application of its provisions.'"

_In the Supreme Court of the United States,
October Term, 1900, John H. Goetze, Appellant, &c.;
Brief for the United States._

On the 8th of January, 1901, four other causes, involving
substantially the same questions, came before the Supreme
Court, and, by order of the Court, were consolidated, to be
dealt with virtually as one case. The titles of the cases were
respectively as follows:

Elias S. A. Dc Lima et al., plaintiffs in error,
agt. George R. Bidwell;

Samuel B. Downes et al., plaintiffs in error,
agt. George R. Bidwell;

Henry W. Dooley et al., plaintiffs in error,
agt. the United States;

Carlos Armstrong, appellant,
agt. the United States, and George W. Crossmon et al.,
appellants, agt. the United States.

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For the plaintiffs, in the case of Henry W. Dooley et al., the
Honorable John G. Carlisle made an oral argument, in which he
said: "What is the Constitution? In the first place it is not
only the supreme law of the States composing the union, but
the supreme law of the land; supreme over every branch and
department of the Government; supreme over every one
exercising authority under the Government; supreme over every
other law or order or regulation, and supreme over all the
people, wherever they may be, within its jurisdiction, and
what we claim is, that so long as this Constitution exists
absolute and arbitrary power over the lives, liberties, or
property of the people can be exercised nowhere in this
Republic. It is now argued that it is supreme only within the
boundaries of the several States, unless Congress extends it
to the Territories; that it limits the powers of Congress only
when legislating for the geographical area embraced in the
States; that the inhabitants of the States are the only people
who can, as a matter of right, claim the benefit of its
guarantees and prohibitions for the protection even of those
personal and property rights which have for ages been secured
by the common law of England, and that all other people within
the jurisdiction of the United States are dependent for the
protection of their civil rights substantially upon the will
of Congress. The question whether the Constitution should be
declared to be the supreme law of the whole land, or only the
supreme law of the respective States and their inhabitants or
citizens, was presented in the Federal Convention of 1787, and
was finally disposed of by the adoption of the clause as it
now stands in the Constitution, which declares it to be "the
supreme law of the land.

"In the plan proposed by Mr. Charles Pinckney, of South
Carolina, it was provided that 'all acts made by the
legislature of the United States pursuant to this
Constitution, and all treaties made under the authority of the
United States, shall be the supreme law of the land,' etc. (1
Elliot, page 46). Mr. Patterson's plan proposed 'that all acts
of the United States in Congress assembled made by virtue and
in pursuance of the powers hereby vested in them, and by the
Articles of Confederation and all treaties made and ratified
under the authority of the United States, shall be the supreme
law of the respective States, so far as those acts or treaties
shall relate to such States or their citizens,' etc. (pages
71, 72). These plans and others were referred to the Committee
of the Whole House and were reported back without any
provision upon this subject. Afterwards the Convention
unanimously agreed to the following resolution:

'That the Legislative acts made by virtue and in pursuance of
the Articles of Union and all treaties made and ratified under
the authority of the United States, shall be the supreme law
of the respective States, so far as those acts or treaties
shall relate to the said States or their citizens or
inhabitants' (page 100). Thus it stood when referred to the
committee of five, of which Mr. Rutledge was chairman, and on
the 6th of August, 1787, that committee reported back to the
Convention a draft of the proposed Constitution, the eighth
article of which was the same as the resolution last quoted,
except that in the place of the words 'Articles of Union' it
contained the words 'this Constitution' (page 120). This
report was considered in the Committee of the Whole, and on
the 23d of August the eighth article was unanimously amended
so as to read: 'This Constitution and all laws of the United
States made in pursuance thereof, and all treaties made under
the authority of the United States shall be the supreme law of
the several States and of their citizens and inhabitants,'
etc. (page 151).

"This was the form in which the article stood when the whole
draft was referred to the committee of eleven, but when
reported back September 12, it constituted the second clause
of the sixth article and declared that the Constitution and
laws and the treaties made and to be made should be 'the
supreme law of the land,' and so it now stands as part of the
Constitution. If the clause had been adopted in the form
agreed to in the committee and inserted in the first draft,
there would have been at least a certain degree of
plausibility in the argument made here for the Government, but
even in that case we think the powers of Congress would have
been limited whenever and wherever it might attempt to
exercise them. But it is argued here that the history of the
Constitution and the language employed in the preamble, and in
some other places, show that it was intended to establish a
government only for such of the States then existing as might
ratify it, and such other States as might thereafter be
admitted into the Union, and that, therefore, while it confers
power upon Congress to govern Territories, it does not require
that body to govern them in accordance with the supreme law of
the land; that is, in accordance with the instrument from
which the power to govern is derived. Even if the premises
were true, the conclusion would not follow; but is it true
that the Constitution was ordained and established for the
government of the States only? If so, how did it happen that
the great men who framed that instrument made it confer the
power to govern Territories as well as States? It is true that
the Constitution was ordained and established by the people of
the States, but it created a National Government for national
purposes, not a mere league or compact between the States, and
jurisdiction was conferred upon that Government over the whole
national domain, whatever its boundaries might be. It is not
true that the Government was established only for the States,
their inhabitants or citizens, but if it were true, then it
could exercise no power outside of the States, and this court
would have to put a new construction upon that provision which
authorizes Congress to dispose of and make all needful rules
and regulations respecting the territory, or other property,
belonging to the United States. The necessary construction of
that clause would be that it conferred power only to dispose
of land or other property, and to make necessary rules and
regulations respecting land or other property belonging to the
United States; that is, belonging to the several States
composing the Union. It would confer no power whatever to
govern the people outside of the States."

_Supreme Court of the United States,
October Term, 1900,
Henry W. Dooley [et al.] vs. the United States:
Argument of J. G. Carlisle._

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On one point the argument of Mr. Charles H. Aldrich, attorney
for the plaintiff in the case of the "Fourteen Diamond Rings,"
was as follows: In "the relations of the United States to other
nations, our government is a sovereign state, and has the
right, and as such 'free and independent State has full power,
to levy war, conclude peace, contract alliances, establish
commerce, and to do all other acts and things which
independent States may of right do.' In this relation it is
correct, as I conceive, to speak of the United States of
America as a unit and use a singular verb. It is such unit and
has this power because there was created a government upon
which the people conferred these powers. If war is declared it
must be under the constitution; if peace is concluded it is in
the exercise of a constitutional power; if commerce is
established it is because Congress under the constitution was
given power to regulate commerce; if alliances are contracted
it can only be done under the constitution. In short, the
sovereign nation exists through the adoption of the
constitution, and its powers are derived from that instrument
and must be found, as this court has often declared, in the
language thereof or by necessary implication therefrom. We are
in the Philippines and Porto Rico and can be rightfully there
only in the exercise of some of these enumerated powers, as in
the language of the tenth amendment, 'the powers not delegated
to the United States by the Constitution, nor prohibited by it
to the States, are reserved to the States respectively, or to
the people.' This amendment designates the constitution as the
source of the power of the United States and excludes the idea
of power free from constitutional restraint derived by
implication from powers delegated by the constitution.

"Nor is it true that at the time this declaration was made all
independent states or nations claimed and exercised the right
to acquire, hold and govern foreign dependencies, and no state
or nation then recognized its obligation to confer on the
people of such acquired territory the privileges and
immunities enjoyed by the people of the home government,
except at its own will and discretion. It is true that all
independent states claimed and exercised the right to acquire
territory, but if it were important in this case I think the
arguments of Pitt, Camden and Barre could be used to establish
the proposition that under the British Constitution as it
then was, that nation had, from the time of King John and the
Great Charter until King George, recognized that its subjects
had essential rights not dependent upon the 'will and
discretion' of the home government. It is unnecessary to
follow that subject here. It is sufficient that the
Declaration of Independence was brought about by the assertion
on the part of King George and his ministers of precisely the
present doctrine of this administration and its
representatives in this court. If value is to be attached to
contemporary history that fact cannot be lost sight of. The
speeches of Grenville and Townshend in favor of unlimited
power on the part of Parliament over the American colonists
and their affairs have been substantially parodied in Congress
by the advocates of unrestrained power over our 'colonies,' as
it is now unfortunately fashionable to denominate them. The
signers of the Declaration of Independence held that as
subjects of the British Constitution there was no right to
impose taxes upon them without their consent, to deprive them
of trial by jury, to deprive them of their legislatures, and
to declare Parliament in vested with power to legislate for
them 'in all cases whatsoever.' These and other grievances
were held denials of rights belonging to every British subject
as such and to justify rebellion and war. It seems impossible
that a people who rebelled for such reasons established a
State invested with the very power which they had denied to
the British government and the assertions of which made
rebellion necessary.

"This argument that the power to declare war and conclude
peace carries with it, as an auxiliary, power to do whatever
other nations are accustomed to do with the people and
territory acquired through the exercise of these powers, has a
remarkable likeness to the arguments put forward at the
beginning of the century with reference to the Alien and
Sedition Acts. The supporters of the constitutionality of
these acts claimed that the common law had been introduced and
become a part of the constitution of the United States, and
therefore the powers usually exercisable under the common law
could be exercised by the Congress of the United States in the
respects involved in those acts. Mr. Madison's letter
discussing this contention was answered, so far as it asserted
the right of a state to nullify an act of Congress, but was
never answered, so far as it denied the existence of the
common law as a part of the constitution of the United States.
His objections to that contention, succinctly stated, were,
that if the common law was a part of the constitution, then
there were no constitutional limitations. Congress, like
Parliament, could legislate in all cases whatsoever; that the
President would be possessed of the royal prerogatives (as is
now claimed in this case by the Attorney-General); that the
judiciary would have a discretion little short of legislative
power; that these powers in the different branches of the
government would not be alterable, because, being in the
constitution, they could only be repealed by amendment of that
instrument; and, lastly, that the constitution would have a
different meaning in different States, inasmuch as the common
law was different in such States, and that it would lack the
certainty which a constitution should have, as the common law
was an ever-growing or varying body of law, and, therefore,
with reference to the proper action of the government in each
instance, the question would be important as to what portion
of the common law was in the constitution and what not so
embodied.

"Nearly every sentence of Mr. Madison's able argument with
reference to the common law as a part of the constitution is
applicable to the contention that sovereign powers, so-called,
as derived from or defined by international law, became a part
of the constitution of the United States through the
delegation of the powers to make war, conclude peace, and make
all needful rules and regulations respecting the territory and
other property belonging to the United States. This court has
adopted the view of Mr. Madison. It is hoped that the child of
the old error by which again the executive and legislative
power is sought to be enlarged through the incorporation into
the constitution of 'the sovereign power of other nations'
will receive the same answer.

"In fact, we submit that this court has already held that
sovereign power in the sense that the words are used in the
law of nations as prerogative rights of the King or Emperor,
not only is not vested in the United States or in any branch
of its government, but cannot be so vested. The sovereign
power is with the people. In leaving it with the people our
government marked a departure from all that had previously
existed."

_Supreme Court of the United States,
October Term, 1900, Number 419:
C. H. Aldrich, Argument in reply._

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UNITED STATES OF AMERICA: A. D. 1901.
Military and naval expenditure,
compared with that of other Powers.

See (in this volume)
WAR BUDGETS.

UNITED STATES OF AMERICA: A. D. 1901 (January).
Apportionment of Representatives under the Twelfth Census.
The question of obedience to the Fourteenth Amendment.
Restrictions of the elective franchise in the States.