THE SUPREME COURT AND THE INSULAR CASES.

U

NDER our system of government, the courts have the last word. Legislatures may enact statutes and the President and Senate may make treaties, but if any question arises as to their effect, the judiciary must ultimately settle it.

Several such questions were presented by the results of our war with Spain. Were the islands which she ceded to us thereby constituted a part of the United States? Did the Constitution prescribe any rules affecting the mode of government? Could the President, by virtue of his military powers, direct their affairs as he might think proper, until, at least, Congress should intervene?

In December, 1900, and January, 1901, nine cases, involving the consideration of these points, were argued at great length and with great ability before the Supreme Court of the United States. On their decision practically depended the retention or the abandonment of the Philippines; for if the Constitution made their inhabitants fully American citizens and required that they should be governed in the same manner as citizens of one of our organized American Territories, it would extend to semicivilized or savage races guaranties fit only for an intelligent and educated people.

Soon after the hearing, Congress ordered the records and arguments to be compiled and printed, as a public document, and they made a volume of over a thousand pages.

Four or five months of deliberation found the court unable to announce any decision in two of these cases.1 The rest were disposed of at the close of the term, but in so lame and halting a way that it is difficult for any one, without close and critical study, to get any clear conception of the positions that may be considered as established.

Dooley v. The United States, No. 502, and Fourteen Diamond Rings v. United States, No. 419.

These may be summarized thus:

1. Territory acquired in possession by the United States, under a treaty, by cession from a foreign power, does not remain a foreign country within the meaning of the tariff laws, which impose customs duties on "all articles imported from foreign countries."

No Act of Congress is necessary to make it domestic territory. Porto Rico therefore became "a territory of the United States," after the ratification of the treaty of cession and the taking of possession, “although not an organized territory, in the technical sense of the word."

This was the decision in DeLima v. Bidwell (21 Supreme Court Reporter, 744, 753, 754, 752), followed in Goetze vs. The United States, (ibid. 741). It was the act of five of the nine Justices, Chief Justice Fuller, and Justices Harlan, Brewer, Brown and Peckham; Justices Gray, Shiras, White and McKenna dissenting. The latter were of opinion that Porto Rico, while in one sense domestic territory, in another sense remained foreign territory.

2. The Hawaiian islands were not a foreign territory, within the meaning of the tariff laws, as to goods imported into one of the United States from Honolulu long after the annexation of the islands, and the taking of full possession by the United States. This was the unanimous decision in Crossman v. United States (21 Supreme Court Reporter, 743).

It may be observed that the Joint Resolution under which annexation was accomplished provided that they were annexed "as a part of the territory of the United States, and are subject to the sovereign dominion thereof," and also that "until legislation shall be enacted extending the United States customs laws and regulations to the Hawaiian islands, the existing customs relations to the Hawaiian islands with the United States and other countries shall remain unchanged." It would therefore appear that all the Justices agreed in holding that Congress could not accept an absolute cession of foreign territory, by an Act making it in terms a part of the territory of the United States, and yet, in the same Act, declare that it should be regarded as subject to the operation of our customs laws, as if it were still

a foreign country. The judgment rendered seems therefore to involve the assumption that the Act of annexation was in part unconstitutional and void; yet this grave determination was made by mere implication and is not so much as noticed in the opinion of the court, which is one of a few lines and is rested soley on DeLima v. Bidwell.

An opposite conclusion had been reached by the Supreme Court of Hawaii in 1899, when a similar question was presented to them in the case of the W. C. Peacock & Co. v. The Republic of Hawaii. They held unanimously, in an able opinion by Mr. Justice Frear, that the Act was wholly operative and valid. The annexation, they declared, remained incomplete until possession was delivered. This was the settled rule of international law. During this interregnum the Constitution of the United States certainly could not affect the existing tariff. But there must follow a period of transition. During that or for that Congress might make such temporary provision as it thought necessary, to bridge over the change from one system of laws to another. This did not differ greatly from the ground taken by Justices Gray, Shiras, White, and McKenna, in DeLima v. Bidwell, and more precisely defined by one of them in Downes v. Bidwell.

3. Porto Rico, before the treaty of cession, and while merely in the military occupation of the United States, was a foreign country, to be ruled by the will of the military commander. He could therefore impose such taxes and levy such customs duties as he thought necessary, including duties on imports from the United States.

This was the unanimous decision in Dooley v. United States (21 Supreme Court Reporter, 766, 768).

4. Porto Rico, after possession was taken or held under the treaty of cession, ceased to be a foreign country, and although military occupation and government were properly continued, until Congress should provide otherwise, the military commander could no longer levy customs duties on imports from a State of the United States. "Her right to the free entry of goods from the ports of the United States continued until Congress should constitutionally legislate upon the subject."

This decision was also made in the Dooley case, and by the Chief Justice, and Justices Harlan, Brewer, Brown and Peckham; Justices Gray, Shiras, White and McKenna dissenting. It was followed in Armstrong v. The United States (21 Supreme Court Reporter, 827).

5. Under the Foraker Act, trade between her and a port of one of the United States was "coasting trade." This was unanimously decided in Huus v. New York & Porto Rico Steamship Co. (21 Supreme Court Reporter, 827).

6. Notwithstanding Porto Rico, after the ratification of the treaty of cession, and possession taken or held under it, ceased to be a foreign country within the meaning of our tariff laws, and became a territory of the United States, it did not become a part of the United States within the meaning of the Constitutional provision that "all duties, imposts, and excises, shall be uniform throughout the United States." Congress could therefore, as by the Foraker Act it did, impose duties on goods imported into one of the United States from Porto Rico at a rate different from that imposed upon like goods "imported from foreign countries.”

This was decided in Downes v. Bidwell, by Justices Gray, Brown, Shiras, White and McKenna; the Chief Justice, and Justices Harlan, Brewer and Peckham dissenting (21 Supreme Court Reporter, 772, 787).

The majority were far from agreeing upon the grounds to support the judgment rendered.

Mr. Justice Brown here stood alone, but wielding the balance of power. No one concurred in his opinion, although four concurred in the judgment which he was selected to announce.

It was a judgment that could not be rendered without either overruling or explaining away one of the leading cases decided by the Supreme Court in the time of Chief Justice Marshall.

This was Loughborough v. Blake, 5 Wheaton's Reports, 317. In 1816, Congress imposed a direct tax for that year on the District of Columbia of $9,999.20. Was it valid? The Constitution provides that "direct taxes shall be apportioned among the several States which may be included within this Union,

according to their respective numbers." How then, could they be imposed on what was not a State? To this Marshall's answer was that a general power to lay taxes was confided to Congress, and not being limited as to place "extended to all places over which the government extends." The provision as to the apportionment of direct taxes was simply a limitation on the exercise of this power, in favor of the States. No State could be exempted from a direct tax. Territory of the United States outside the limits of a State might be left unaffected by such an imposition. On the other hand, it might be included, subject always to proportioning the tax to its population as ascertained by the census. The provision that "all duties, imposts, and excises, shall be uniform throughout the United States" was evidently coextensive with the power of taxation. "It will not be contended that the modification of the power extends to places to which the power itself does not extend. The power then to lay and collect duties, imposts, and excises, may be exercised, and must be exercised throughout the United States. Does this term designate the whole, or any particular portion of the American empire? Certainly this question can admit of but one answer. It is the name given to our great republic, which is composed of States and Territories. The District of Columbia, or the territory west of the Missouri, is not less within the United States than Maryland or Pennsylvania; and it is not less necessary, on the principle of our Constitution, that uniformity in the imposition of imposts, duties, and excises, should be observed in the one than in the other. Since, then, the power to lay and collect taxes, which includes direct taxes, is obviously coextensive with the power to lay and collect duties, imposts. and excises, and since the latter extends throughout the United States, it follows, that the power to impose direct taxes also extends throughout the United States."

Mr. Justice Brown says in his opinion, that these are "observations which have occasioned some embarrassment in other cases." They were, however, he continues, sound so far as applicable to the District of Columbia, because that was once part of a State, and its cession to the United States "did not take it out of the United States or from under the aegis of the Constitution."