as the Insular cases, but as a question of statesmanship and public policy it is by no means a recent question. It came up in our first acquisition of foreign territory by the Louisiana Purchase. The Louisiana Purchase was objected to as unconstitutional for three reasons: I. The Constitution conferred upon Congress no power to acquire territory. Constitutional 2. But if Congress could acquire territory, neither conquest nor purchase could incorporate the new territory in the Union, as the Louisiana Treaty guaranteed to do. It must remain in the condition of a the Louisiana colony, until it is admitted, not by the treaty Purchase. power, but by the same confederated powers, the States, that had made the Union and the Constitution, each State consenting. 3. The treaty provided that the ships of France and Spain be admitted for twelve years into the ports of the ceded territory without paying higher duties than the ships of the United States. This, it was asserted, was in opposition to the clauses of the Constitution which declare that "no preference shall be given to the ports of one State over those of another, and that all duties, excises, and imposts shall be uniform throughout the United States." It was replied, in the first place, that the right to acquire territory must exist somewhere: it is essential to Constitutional independent sovereignty. As it was prohibited Defence of the to the States, the power was necessarily vested Purchase. in the United States. It was involved in the treaty and war powers and belonged to all independent governments. Powers inherent in sovereignty which had not been expressly reserved to the States were vested in the National Government. This view as to the power of the National Government to acquire territory by conquest or purchase is now universally accepted, and the power is now unquestioned. In powers that pertain to a nation the United States may do what any nation may do. The second objection was evaded in the recognition of the fact that the treaty power had only promised to admit the new territory. It was held by the objectors that only the States, as the copartners to the compact, could fulfil the promise; that, therefore, the new possessions must remain in the condition of colonies and be governed accordingly. "The union of the States was formed on the principles of a copartnership, and it would be absurd to suppose that the agents of the parties, who have been appointed to execute the business of the compact in behalf of the principals, could admit a new partner without the consent of the parties themselves."' As to whether the treaty-making power could incorporate the inhabitants of ceded territory with the citizens of the United States, no doubt Jefferson and Madison and the men of their time denied such power. That such territory and its inhabitants would be incorporated by the treaty itself and brought under the Constitution in spite of its stipulations was not to be supposed. But it was soon subsequently allowed, and it is now not denied, that Congress was competent to fulfil this treaty promise, which it did by the admission of Louisiana in 1812. In replying to the third objection, that the Constitution required the customs dues to be uniform throughout the United States, Nicholson, a leader of the Jeffersonian Republicans in the House, said that the Territories of the United States were no part of the United States; that they were possessions of the United States and only became integral parts of it when they were admitted into the Union as States. The Territories of the country were in the nature of Colonies and might be governed by the American Government as it saw fit without regard to the restrictions of the Constitution. "Louisiana is a 'Speech of Griswold, Annals of Congress, 1803-1804, p. 461. territory purchased by the United States in their confederate capacity, and may be disposed of by them at pleasure. It is in the nature of a colony whose commerce may be regulated without any reference to the Constitution.' Louisiana in 1804 Was Absolute. In harmony with this political view, the act of Congress organizing a temporary government for Louisiana gave Civil Govern- the President of the United States the same ment for power over the territory that had been exercised by the King of Spain, until Congress should decide upon a permanent form of government. It was seen to be necessary that the United States should take possession of the country in the capacity of sovereign to the same extent as that of the Governments of France and Spain. It was maintained that there was no Constitution so far as the Territories were concerned. In 1803, Jefferson signed a bill which put him in possession of absolute power over the people of Louisiana. Afterwards, the permanent government for Louisiana, provided in 1804, gave to the President power to appoint both the Governor and the Legislative Council, and the Governor might assemble and prorogue the legislature at his pleasure, and he had a negative on all legislative acts. Such a government was practically absolute and it was such as is not known to the Constitution. The limitations of the Constitution were not held to bind either Congress or the President in the early government of Louisiana. Status of In The public policy pursued in our first territorial acquisitions has been followed in our last, and that habitants of policy has now received in the late Insular cases the sanction of constitutional law in a decision of the Supreme Court. Ceded Islands to be Determined by Congress. In the treaty which closed the Spanish War in 1898, sovereignty over Porto Rico and the Philippines 1 Gordy's History of Political Parties, vol. i., pp. 431-432. was ceded to the United States, and it was provided in the treaty that the "civil and political status of the native inhabitants shall be determined by Congress." As a point of constitutional law the question of the extent of congressional power in these islands came before the Supreme Court in a case to determine whether Congress had power to establish a different revenue system for the ceded territory from that which applies "throughout the United States." The Constitution says that "all duties, imposts, and excises shall be uniform throughout the United States." In November, 1900, after the passage of the Foraker Act providing a civil government for Porto Rico, an importer shipped into New York some oranges from that island. Duties were demanded on these oranges under the Foraker Act. The former case,' in which the Court held that Porto Rico was domestic, not foreign, territory, came up after the treaty cession of the island, but before Congress had passed an act for its civil government. The latter case, testing the extent of congressional power, arose after Congress had passed an act organizing Porto Rico into a Territory, and providing for the laying of duties upon imports from the island different from the duties on importations from foreign countries. Such different duties, of course, could not be laid at all if Porto Rico were a part of the United States. If Porto Rico were a part of the United States in the sense in which Indiana or Arizona or New Mexico or California is, no duties could be laid upon her products any more than duties could be laid upon a cargo of oranges brought from San Francisco to Chicago. It will be seen that this case involved the whole question of the power of Congress over the Territories,- whether this power is unlimited and plenary, or whether it is limited by the restraints of the Constitution. 1 The De Lima case. In concluding its decision the Supreme Court said: Congress is Not Limited by the "Uniform-Revenue Constitution. "Patriotic and intelligent men may differ widely as to the desirableness of this or that acquisition, but this is solely a political question. We can only consider this aspect of the case so far as to say that no construction of the Constitution should be adopted which would prevent Congress from considering each case upon Clause" of the its merits unless the language of the instrument imperatively demand it. A false step at this time might be fatal to the development of what Chief Justice Marshall called the American Empire.' Choice in some cases, the natural gravitation of small bodies towards large ones in others, the result of a successful war in still others, may bring about conditions which would render the annexation of distant possessions desirable. If those possessions are inhabited by alien races, differing from us in religion, customs, laws, methods of taxation, and modes of thought, the administration of government and justice, according to Anglo-Saxon principles, may for a time be impossible; and the question at once arises whether large concessions ought not to be made for a time, that ultimately our own theories may be carried out, and the blessings of a free government under the Constitution extended to them. We decline to hold that there is anything in the Constitution to forbid such action. We are therefore of opinion 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 cannot recover back the duties exacted in this case."' It was thus held that the uniform revenue clause of the Constitution does not bind Congress in the government of the ceded islands. In respect to a customs law for the island the power of Congress is not determined by 1 Supreme Court decision, Downes vs. Bidwell, May, 1901. |