"be admitted that the constitutional guaranties of "civil rights would apply to territory under the sovereignty, but not a part, of the United States. "Certain civil rights which we believe belong to every one, are crystallized into the negative pro"visions of our Constitution, in order to prevent any wrongful and improper use of our power, and these "may well be held to control our power wherever "it reaches. These considerations may be found to "limit us in governing any territory. Whether they "do or not it is not necessary here to decide. If "they do, it will be because we cannot violate the "principles of government embedded in our institu"tions, not because Porto Rico is a part of the "American nation. It will be for the reason thus "stated by Mr. Justice Bradley in Mormon Church "v. United States: 'Doubtless Congress in legis"lating for the Territories would 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, from which Congress derives all its

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powers, than by any express and direct applica"tion of its provisions.'" Mr. Justice Bradley's much-quoted dictum is not a fit conclusion to these observations, because it recognizes the obligation of the guaranties, which is the important thing, and describes it as being inferential rather than direct, which is not important. Concerning the observations themselves I have only to say that a judge who asserts that our new possessions are not "part of the "American nation" is estopped from anticipating that

their inhabitants may be entitled to the guaranties; for the Supreme Court has declared: "The Constitu"tion can have no operation in another country." "1 And "the spirit pervading republican institutions" cannot be invoked by the courts to discredit acts of government, except as it is embodied in the Constitution, for in this written law the people of the United States have gone as far as they intended to go in restraining their government. The right of the Supreme Court to condemn acts conflicting with these limitations has long been conceded; but should the court enthrone a "spirit" whose responses must reflect the opinion or prejudice of the questioning judge, it would assert an intolerable power of intervention in affairs of state, as well in New York as in the Philippines.

The authority of the Constitution in the Philippines has an important bearing upon the subject of federal taxation, especially the taxation of commerce.

Foreign Commerce

First, of commerce between the islands and foreign countries. After our occupation of California had been confirmed by the ratification of the treaty of cession, the Administration abandoned the military tariff imposed during the belligerent occupation, and proceeded to collect upon foreign imports the duties 1 Ross's Case, 140 U. S. 453, 464.

of the general Tariff Act.1 A different practice prevails in the Philippines, where the Administration imposes duties at discretion. Now even if Congress were authorized to levy peculiar taxes upon foreign goods brought into annexed territory, the President would have no right to do so. His ability to collect duties at all rests upon a presumed intention of Congress evidenced by a tariff act, and it is not definitely settled that even such collections are valid unless they are ratified by Congress. To admit his right to levy taxes at discretion because of a latent power in Congress to do this would imply the existence of an executive power to originate revenue legislation in United States territory, in derogation of the provision of the Constitution: "All bills for raising "revenue shall originate in the House of Represen"" 'tatives."

The next question is whether Congress itself may impose special duties upon foreign goods brought into the Philippines. As a matter of fact, Congress has never exacted peculiar duties in new districts, but has always extended the existing tariff laws either about the time of annexation or shortly thereafter. As a matter of law, the Administration insists that the constitutional provision that "all duties, im"posts, and excises shall be uniform throughout the "United States" does not apply to the new possessions. The Secretary of War says in his report for 1899: "The provision of the Constitution prescribing

3

1 Cross v. Harrison, 16 Howard 164.

2 See infra, p. 113.

3 Page 27.

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uniformity of duties throughout the United States "was not meant for them [the Porto Ricans], but was a provision of expediency solely adapted to the con'ditions existing in the United States upon the con"tinent of North America." I should call a law assuring equal taxation and freedom of trade throughout the republic a provision of justice, not of expediency, and I fail to understand upon what principle a court could hold this provision to be operative in Maine, Louisiana, Alaska, and Ohio, and in Mexico and Labrador, should we annex them, yet inoperative in Porto Rico. From this makeshift survey of the field of the Constitution we turn with confidence to Chief Justice Marshall's delimitation suggested by this very provision, and embodied in his famous definition of the "United States -"our great repub

lic, 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 principles of our Constitution, "that uniformity in the imposition of imposts, duties, "and excises should be observed in the one than in "the other."1 Here is the law of the commercial unity of the republic expounded by its foremost interpreter, and the Philippines, being within the republic, are within the law.

Domestic Commerce

We have next to consider the question of duties upon commerce between the islands and our main1 Loughborough v. Blake, 5 Wheaton 317, 319.

...

land. A statement of the Court in Fleming v. Page1 is often cited in this relation: ". . . under our rev"enue laws every port is regarded as a foreign one, "unless the custom-house from which the vessel "clears is within a collection district established by "act of Congress, and the officers granting the "clearance exercise their functions under the author"ity and control of the laws of the United States." This statement misleads in so far as it lends color to the assertion that precedent sanctions the taxation of this commerce. It is conceded that a port is foreign in a fiscal sense, though the United States. claim title to it, if they have not gained possession, as in the case of Baton Rouge in the Louisiana territory ceded by Spain to France and by France to us, but actually held by Spain for some time after we had taken possession of New Orleans; or have lost possession, as in the case of Castine in Maine, seized by the British forces in 1814:2 and a port is foreign, too, though the United States have possession, if they await the ratification of a treaty to perfect their title, as in the case of San Juan in Porto Rico, or if they hold it by mere force of arms, as in the case of Tampico in the Mexican War, which was the matter before the Court in Fleming v. Page. But a scrutiny of administrative practice down to the end of the Mexican War shows that, with perhaps trifling and peculiar exceptions, as in the case of New Orleans, duties were not collected upon goods carried between old and new possessions after our 19 Howard 603, 617.

2 U. S. v. Rice, 4 Wheaton 246.

3 See Cross v. Harrison, 16 Howard 164, 199.