Morning Oregonian., May 28, 1901, Page 2, Image 2

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INSULAR CASE DECISION
BIGHT
TO COLLECT OX
RICAX IMPORTS.
PORTO
Supreme Court Hold It "Wan Con
ferred on United States by the
Foraker Act. - -
"WASHINGTON, T. C. May .-Justice
.Brown delivered the opinion or the court
In the Insular case of Downes .vs. Col
lector Bidwell, of the port" of New York.
In which suit was brought by Downes
to recover duties to the amount of $539 35,
exacted and -paid tinder protest upon, cer
tain oranges consigned to the plaintiff
at New "York, and brought thither from
the port of San Juan, In the Island, pf
Porto Rico, during the month of Novem
ber, 1900. This case involved the ques
tion whether merchandise brought into
the port of New York trom Porta Rico
since the passage of the Foraker act
is exempt from duty, notwithstanding
the third section of that act, which, re
quires the payment of "15 per cent of the
duties, which are required to be levied,
collected and paid upon like articles of
merchandise imported from foreign coun
tries." The Circuit Court of the United
States, for -the Southern District of New
York sustained the Government in this
position In imposing a duty. The Su
preme Court affirmed the opinion of the
Circuit Court, saying: (
"We are of the opinion that the Isl
and of Porto Rico is a territory appur
tenant, and belonging to the United
States, but not a part of the United
States within the revenue clause of-the
Constitution; that the Foraker act Is
constitutional, so far as It imposes duties
upon Imports from such islands, and that
the plaintiff cannot recover, the duties
exacted in the case."
The opinion of the court went into the
case very fully. Justice Brown early
in his opinion outlined the distinction
between this case and the Delima case,
which had Just been decided, saying:
"In the case of Delima versus Bidwell,
we hold that upon the ratification of the
treaty of peace with Spain, Porto Rico
ceased to be a foreign country, and that
duties were no longer collectable upon
merchandise brought from that island.
"We are now asked to hold that it became
a part of the United States within that
provision of the "Constitution which
declares that all duties. Imports, and ex
cises shall be uniform throughout the
United States. If Porto Rico be a part
of the United States the Foraker act.
Imposing duties upon its products, is un
constitutional, not only by reason of a
violation of the uniformity clause, 3jut
because by section nine, "vessels bound to
or from one state' cannot "be obliged to
enter, clear or pay duties in another,
"The case also involves the broader
question whether the revenue clauses of
the Constitution extend of their own force
to our newly acquired territories. The
Constitution Itself does not answer the
question. Its solution -must, be found In
the nature of the government created by
that instrument. In the opinion of Its
contemporaries. In the practical construc
tion put upon it by Congress, and In the
decision of this court."
The acquisition of territory and the
formation of territories was discussed,
and many authorities guoted. As a re
sult of these citations the -Justice' laid
down the following general conclusions:
General Conclusions.
"First That the District of Columbia
and the territories are not states, with
in the judicial clause of the Constitution
giving jurisdiction in cases between citi
zens of different states.
"Second That territories are not states,
within the meaning of the revised stat
utes, section 709, permitting writs of er
ror from this court In cases where the
validity of a state's statute Is drawn in
question.
"Third That the District of Columbia
and the territories arc states as that
word is used in treaties with foreign
powers, with respect to the ownership,
disposition and inheritance of property.
"Fourth That the territories are not
"within the clause of the Constitution pro
viding for the creation of a Supreme
Court and such ihferior courts as Con
gress may see fit to establish.
."Fifth That the Constitution does not
apply to foreign countries or to trials
therein conducted, and that Congress may
lawfully provide for such trials before
consular tribunals without the interven
tion of a grand or petit jury-
"Sixth That where the Constitution has
been once formally extended by Congress
to territories, neither Congress nor the
territorial Legislature can enact laws In
consistent therewith."
In his opinion Justice Brown referred
at length to the decision of Chief Justice
Taney, in the Dred Scott case, and said
the difficulty with the Dred Scott case
was that the court refused to make a
distinction between property In general
and a wholly exceptional class, of prop
erty. Taking up the case In hand, the
Justice continued his opinion, saying:
"The practical Interpretation put by
Congress upon the Constitution has been
long, continued and uniform to the ef
fect that the Constitution is applicable
to territories acquired by purchase or con
quest only when and so far as Congress
shall so direct. Notwithstanding Its
duty to guarantee to every state in this
Union a republican form of government.
Congress did not hesitate in the original
organization of the territory of "Louis
iana, Florida, the Northwest Territory
and its E.ub-divislon of Ohio, Indiana,
Michigan fllnols and Wisconsin, and
still more recently in the case of Alaska,
to establish a form of government bear
ing a much greater analogy to-a British
crown colony than a republican state of
America, and to vest the leg sjatlve power
either in a Governor and Council, or a
Governor and Judges to be appointed by
the President.
"We are alsotof the opinion that power
to acquire territory by treaty implies
not only the power to govern such terri
tory, but to prescribe upon what terms
the United States will receive Its inhabi
tants and what their status shall be In
what Chief Justice Marshall termed the
American empire.' There seems to be
no middle ground between this posi
tion and the doptrine that If their In
habitants, do ;not become. Immediately
upon annexation, citizens of the United
.States their children thereafter born,
"whether savages or civilized, are such and
ire entitled to all the. rights, privileges
2and immunities 6f citizens. - If such; be
their status, the consequences will be
"extremely serious. Indeed, It is doubt
ful If Congress -would ever assent to the
annexation of territory upon the condi
tion that its Inhabitants, however for
eign they may be to our habits, tradi
tions and modes of "life, shall become, at
once citizens of the United States. Inall
Its treaties hitherto, the treaty- making
power has made special provision for this
subject"
Further along Justice Brown remarked:
"Whatever may be finally decided by
the American people as to the status of
eiese islands and their inhabitants,
hether they shall be introduced into
the sisterhood of states, or be permitted
to form independent governments, it does
npi follow that In. the -meanwhile, await
ing that decision, the people are in the
matter of personal rights unprotected by
the provisions of our Constitution and
subject to the merely arbitrary control
of Congress. Even If regarded as aliens
they are entitled tinder the principles of
the Constitution to be protected in life,
liberty and property.
Slant Be Entraated to Concreu.
"Large powers must necessarily be en
trusted to Congress in dealing with these
problems, and we are bound to assume
that they will "be judiciously exercised.
That these powers may be abused is
possible. But the same may be said of
its powers under the Constitution as well
as outside of It. Human wisdom has
never Revised a form of government so
perfect that It may .not be perverted to
bad purposes. It is never conclusive to
argue against the possession of cer
tain privileges from possible abuses of
them. It is safe to say that if Congress"
should venture upon legislation mani
festly dictated by selfish Interests, it
would receive quick rebuke at the hands
of the people. Indeed, it is scarcely pos
sible that Congress could dp a greater
injustice to these Islands than would be
involved in holding that It could -not Im
pose upon the states taxes, and, excises
without extending the same taxes to
I .them. Such requirement would bring
them at once within our internal revenue
".system.. .Including stamps, licenses, ex
cises- and all the paraphernalia of that
system, and applying it to territories
which .have had no experience of this
kind, and. where it would prove an lni
tolerable burden."
Commenting upon the virtual absence,
of provisions in the Constitution for the
acquisition of territory. Justice Brown
says It can only be accounted for on the
ground that the framers of that Instru
ment did not forsesee the country's future
possibilities in that respect.
"If, he says, "it be once conceded that
we are at liberty to acquire foreign ter
ritory, a presumption arises that our
power with respect to such territory is,
the samepower other nations have been
accustomed to exercise with respect to
territories acquired by them. If, In
limiting the power which Congress was
to exercise within the United States, it
was also Intended to limit It with re
gard to such territories as the people of
the United States should thereafter ac
quire, such limitations should have been
expressed. Instead of that we find the
Constitution speaking only to states, ex
cept in the territorial clause, which Is
absolute in its terms and suggestive of
no limitations upon the power of Con
gress in dealing with them. The Btates
could only delegate to Congress such
power as they themselves possessed,' ind
as they had no po.wer to, acquire new
territory they had none to delegate in
that connection. The logical Inference
from this is that if Congress had power
to acquire new territory, which Is con
ceded, -that power was not hampered by
the constitutional provision." In the last
paragraph of his decision, before an
nouncing the court's opinion, Justice
Brown said:
"Patriotic and Intelligent men may dif
fer widely as to the desirableness of this
or that acquisition, but this Is solely a
political question. We can only con
sider this aspect of the case so far as to
say that no construction of the Consti
tution should be adapted which would
prevent Congress from considering each
case upon Its merits, unless the language
of the Instrument imperatively demands
it. A false step at this time might be
fatal to the development of what Chief
Justice Marshall called the American em
pire. Choice in some cases, the natural
gravitation of small bodies toward large
ones In others, the result of a success
ful war In still others may bring about
conditions "which would render the an
nexation of the distant possessions de
sirable. If those possessions are In
habited by alien races, differing from us
in religion, customs, laws, methods of
taxation and modes of thought, the ad
ministration of government and justice,
according to Anglo-Saxon principles, may
for a time be impossible and the ques
tion at once arises whether large con
cessions 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 ex
tended to them. We decline to hold that
there" is anything In the Constitution to
forbid such action."
DOOLEY DECISION REVERSED.
Xo Duty on Imports Chargeable Af
ter Ratification of Peace Treaty.
WASHINGTON, May 27. The Supreme
Court today passed on the case of Dooley
vs. the United States, being- an act
brought to recover duties paid under pro
test at San Juan on Importations from
New York between July 25, 189S, and May
1, 1930. The first question was .whether
this action, being to recover money from
the United States should not have" been
brought In the Court of Claims, but the
court held that It was properly brought
before the United States District Court for
Southern New York. The court said the
duties were of three classes, thbse levied
under General Miles' order extending the
Spanish regulations pending further ac
tion; those prescribed by the Commander-in-Chief,
the President, until the cession
of the island, and third, those subsequent
ly levied. The court said there could be
no doubt as to the lawful exaction of duty
under the war power. While the treaty of
peace was -signed December 12, 1S98, It
did not take effect until ratification. The
ratification of the Spanish Government
was superseded, but the necessity for reve
nue did not cease. The Government must
be carried on, and there was no author
ity left but the military authority. The
most natural method of raising revenue
was by continuing the Spanish duties.
General Miles, In adopting this method,
was fully justified by laws of war.
The court said further:
"Different considerations apply In the
date of notice of the treaty of peace.
Porto Rico then ceased to be foreign
country, and the right of the Collector
to exact duties ceased with the exchange
of ratifications, though the right to ad
minister the government, of course, con
tinued. From the moment the United
States ceased to be foreign country -With
respect to Porto Rico, and until Con
gress acted. Importations were free from
levy of duty, whether from one place to
the other, or vice versa. In the opinion
of the court, the authority of the Commander-in-Chief
ceased with the ratifica
tion of the treaty of peace, and the right
to free entry of goods continued until Con
gress Constitutionally acted. For this rea
son the decision will be reversed."
Justices Gray, Shlras, White and Mc
Kenna dissented. The dissent was based
on the ground that Porto Rico does not
Ipso facto become a part of the United
States, so far as the tariff laws are con
cerned, the moment the treaty of peace
was ratified.
The case of Armstrong vs. the United
States, involving the validity of a duty
assessed on goods shipped to Porto Rico
during military occupation and partly be
fore and party after ratification of this
treaty, was decided on the lines of the
Dooley case, the court dividing In , the
latter case.
HISTORY-MAKING DECISION.
Opinion of Attorney Who Argued the
Dellnm Case.
NEW YORK, May 27. Frederick R.
Coudert. Jr., who argued the cases, of
Delima and Downes before the Supreme
Court, said:
"This Delima decision affects only the
duties collected on Porto Rlcan products
pfevio'us to the passage of the Foraker
act. We have covered the question of du
tlea collected since the passage of that
n- trhnt Is called the Downes case.
Thlstis an Issue which we created to test
the constitutionality of the law.
Speaking of the Delima decision, Mr.
Coudert said:
"This case, I think I can say. Is rfhls-tory-maklng
decision. It will1 hafe a
bearing upon the position, not only of
Porto Rico, but of the Philippines and
Hawaii as welL It practically means
that this Government! can have no such
thing as colonies in the sense that Great
Britain has them. Every inch of terrl-tfiT-v
n.'tr whlp.h the flae: floats must here
after be considered an integral part" of
the union. "
Charles "Frederick Adams, of the law
firm of Coudert! Bros., who prepared the
case of Delima, said:
"'If the court says the Foraker act Is
T-ti"YVien thp constitutional miration Is
against u. for Congress has the power
to discriminate against ceded countries.
Tn that not n rtnPv nf 5 ner rent of the
Dlngley act was regarded as legal on
goods snipped irom .rono ico, nut in tne
case of Downes it was brought up 'as a
test case, their duty being levied after
the passage of the Foraker act."
'Canadian Pacific, $60.00.
To St. Paul and return: good for 60 days.
Tickets on sale May SO -and June T. For
particulars, call on or address Canadian
Pacific, 112 Third street.
GOVERNMENT LOSES CASE
MUST RETURN BUTT CHARGED OJT
PORTO, RI CAST GOODS.
Ratification, of Treaty With Spain
Gave Ko Such Power This Came
With," the Fora'lter Act.
WASHINGTON, May 27. The first in
sular case decided today was that of
Ellas S. A. Delima, et al., plaintiffs in
error, "against George R. BIdweJl, .Collec
tor of the Port of New York, the case
coming to the Supreme Court from the
Circuit Court "of the "United States for
the District of New York. The decision
was rendered on behalf of the majority
rof the court by Justice Brown, the opin
ion being concurred in by all the Jus-,
tices except Justices. McKenna, Shlras and,
White. The decision hung upon tne case
coming from the State of New York,
involving the levying--of $13,000 In duties
on goods iniported from Porto Rico into
the United .States, the collection of the
duty having been, sustained by the lower
court. In the effect the decision was that
territory acquired by the United States is
a part of the United States, and not for
eign territory, and that such Import du
ties could not be, levied. T.he decision of,
the lower court was reversed.
Justice Brown announced In the begin
ning of bis decision that the court un
doubtedly has jurisdiction in this case. He.
said the. case raised the single question
whether" territory. acquired by the United
States by cessation from a foreign power
remained a "foreign country" within the
meaning of the tariff laws, and added:
"The question involved In this t case, is
not whether the-sugars were importable
articles under the tariff laws, but whether,
coming as they did from a port alleged
to be domestic, they were Imported from
a foreign country; In other words, wheth
er they were imported at all as that word
is defined In Woodruff vs. Parham. We.
think the decision in the Fassett case is
conclusive to the effect that if the question
be whether the sugars were Imported or
not, such question could not be raised
before "the Board of General Appraisers,
and that whether they were . imported
merchandise for the reasons given In the
Fassett case that a vessel is not ani im
portable article, or because 'the merchan
dise was not brought from a foreign coun
try, Is Immaterial. p In either case, the
article Is not imported.
"Conceding that section 3011 has been
repealed, and that no remedy exists un
der "the customs administrative act, does
it follow that no action whatever will
lie? If there be an admitted wrong, the
courts. will, look far to supply an ade
quate remedy." The decision then goes on
to vsay that If . the position of the Gov
ernment be correct, plaintiff would be
without redress in cases not falling In
customs administration act. "It Is hardly
possible," continues the decision, "that
the owner could be .placed In this posi
tion." After citing numerous opinions and au
thorities to show that the. action of
the plaintiffs in error was properly
brought, the court holds that "whether
these cargoes of sugar were subject to
duty depends solely upon the question
whether Porto Rico was a foreign country
at the time the sugars were shipped, since
the tariff act of July 24, "1897, commonly
known as the -Dingley act; declares that
'there shall be 'levied, collected and paid
upon all articles Imported from foreign
countries,' certain duties therein speci
fied. A foreign country was defined by,
Chief Justice Marshall and Justice Storey
to be exclusively within the sovereignty
of a foreign nation, and without the sov
ereignty of the United States.
"The status of Porto Rico was this: The
Island had been for some months under
military occupation by 'the United States
as a conquered country, when, "by the
secohd article- of the treaty of peace be
tween the United States and Spain; signed
December 10, -189S7 "and" ratified April 11,
1899, Spain .ceded to, the U.qited States the
Island of Porto JEtlqo,., which has ever
since remained In our possession, and has
been governed and. .administered by us.
If the case depended solely upon those
facts, and the question was broadly pre
sented whether a country which had
been ceded to us, the cession accepted,
possession delivered and the Island occu
pied and administered without interference
by Spain or any other power, was a for
eign country or domestic territory. It
would seem that there could be as little
hesitation In answering this question as
there would be, In determining the owner
ship of a house deeded In fee simple to
a purchaser who had accepted the deed,
gone Into possession, paid taxes and made
improvements without let or hindrance
from his vendor. But It Is earnestly in
sisted by the Government -.that it never
could have beep the Intention of Congress
to admit Porto Rico Into a customs union
with the United States, and that while
the island may be to a certain extent do
mestic territory, It still remains a 'for
eign country' under the tariff laws until
Congress has embraced lfwlthln the gen
eral revenue system." '
At great length the court then discussed
similar cases arising"from previous ac
quisitions of territory by the United
States, reviewing- very fully former deci
sions of the court involving questions
such as are presented In this case. The
possessions in connection with which the
main question involved In this case has
risen are Louisiana, Florida, Texas, Cali
fornia, and Alaska. Each case was taken
up in order and analyzed minutely. The
"court then presented its conclusions In
the following language:
"As showing the construction put upon
this question by the Legislative Depart
ment, we need only to add that section
2 of the Foraker act makes a distinction
between foreign countries and Porto "Rico
by enacting that the same duties 'shall
be paid upon 'all articles imported into
Porto Rico from ports other than -those
of the United States, which are required
by law to be collected -upon articles Im
ported: Into the United States from for
eign countries.'
"From this resume of the declslpns of
this court the Instructions of the Exr
ecutive Departments and above act of
Congress, it is evident that from 1803,
the date of Mr. Gallatin's letter, to this
present time there Is not a shred of au
thority, except the dictum In Fleming vs.
Page, for holding that a district ceded to
and in the possession of the United States
remains for any purpose a foreign coun
try. Both these conditions must exist
to produce a change of nationality for
revenue purposes. Possession Is not alone
suflCKent, as was held In Fleming vs.
Page; nor Is a .treaty ceding such terri
tory sufficient w'ithput a surrender of pos
session' The practice of the executive
departments, thus continued for -more
than 'half a century, Is entitled to great
weight, and should 'not be "disregarded
nor" overturned, except, for cogent. rea
sons and tinress It be clear that, such con
struction be erroneous."
"If this were presented as 'an original
question we should-be Impelled irresist
ibly to the same conclusion.
"By article 2. section 2, " of the Con
stitution, the President Is given power,
by and with the advice and consent of
the Senate, to make treaties, provided that
two-thirds of the Senators present concur,'
and, by article 6, 'this Constitution and
the laws of the United States, which shall
be made in pursuance thereof, and all
treaties made or Which shall be made
under the authority of the United States,
Shall be the supreme law of the land.',
"It will be observed that no 'distinc
tion Is made as to the question df su
premacy between laws and treaties," ex
ceptthat both are controlled by the'Con
stltutlbn. A law requires the assent of
both houses of Congress, and except in
certain specified cases the signature . of
the President. A treaty is, negotiated and
made by the President with the concur
rence of two-third3 of the Senators pres
ent? but each of them Is the supreme law
of "the land. " t
-"One of the ordinary Incidents, of. a
treaty is the cession of territory. Itls
not too much to say itls the rule," -rather
than .the exception, that a treaty of peace,.
following upon a war, provides for a ces
sion, of "ternary to' "the- Victorious party
The territory thus acciuhed fs' 'ucuuiretf
as absolutely as if the ratfnexat!on were
made, as i tile ciase of Texas. andHawali.
by an act o'f Congress. ' " r
Great JPoyver of "CpBsrres,
"It, follows from this that by ratifica
tion of the Treaty of. Paris, Porto Rico
became territory -of. the United States, al
though not an organized territory lnthe
technical senso of the word. r
It is -true Chief Justice: Taney held
InrScott.vs. .Sanford-that- tho territorial
clause of the Constitution wa3 confined,
and in.tended to be confined, tp the- territory-
which ,at that time belonged to or
was claimed by the United States, and
was within their boundaries as- settled
by that treaty with Great Britain, and
was not 'intended to apply to territory"
subsequently t acquired. .He seemed to
differ In this construction,. . f rom Chief
Justice Marshall., who in speaking of'
Florida before It became a state . reJ
marked..that it ..continued to bo a, terri
tory of the United States, governed by1
the territorial clause of the Constitu
tion, but whatever be the source of thist
power its uninterrupted exercise Jay Con
gress for a, century and the repeated, de
clarations pf this court have settled. he
law that the right to acquire territory
Involves the right to govern and dispose."
of It Indeed, it is scarcely too much
. to say .that there has not been a ses
sion, or congress since tne xerrjy m
Louisiana was riurchased .that that body
has not enacted legislation based' upon'
tne assumed aumoruy to go vein mm
control the territories. If is an authority
which arises not necessarily from the
territorial clause or the Constitution, but
from the necessities' of. the case and from
the inability of the states to act upon I
tne suDject. unaer, imp jjoweruiisiras
may deal "with territory acquired bys
treaty; may administer' Its government as
.It does that th? District of Columbia; it
may organize a local territorial govern--ment;
it" may admlt'ifr as a state upon
an equality with other states; it may
sell Its public lands to Jpdlvldual citizens,
br may donate1 them as homesteads td
actual setilers. In short, when once ac
quired by treaty." it belongs to the United
States and is subject to the disposition of-j
Congress,
"Territory -thus acquired can remain
a foreign country under the tariff 'laws
only utfpn one ' or two theories efther.
that the word ''foreign' applies to such
countries as were foreign at the time
the statute was -enacted, notwlthstandlng
any subsequent, change in their condi-t
tion, or that they, remain foreign 'under
the tariff lawfc until Congress has -form-
rally embraced theni within the 'customs
union of the states. The first, theory
Is obviously untenable. While a "'statute
Is presumed to speak from the lime of-'
Its enactment, it embraces all such per
sons or things as subsequently fall with
In Its scope. Thus a statute forbidding'
the sale of liquors to minors applies not'
only to minors In existence at the time
the statute was enacted, but to all who
are subsequently -born,, and ceases to ap-'
ply to such as. thereafter reach their
majority. So, when the Constitution 'of
the United States declares n article 1,
section 10, that the 'states shall 'not do
certain things, this declaration operates
not only upon the 'thirteen original states,
but' upon all who subsequently Become
such; and when Congress places 'certain
restrictions upon the power of a terri
torial legislature, such restrictions cease
to 'operate the moment such territory
is admitted as 'a: state. By parity of
reasoning, "a country ceases to be foreign
the instant It becomes domestic. At
once, too, if Congress -sees - fit to cede'
one of its newly' acquired territories
(even assuming that It had the right to
do so) to a foreign power, there could be
no doubt that, from the day of such
cession and the delivery of possession
sudh territory would become a foreign
country and be reinstated as such under
the tariff laws. Certainly no act of Con
gress would be necessary In such cases
to declare that' the. laws of the -United
States had ceased to apply to it--"
"The theory 'that a country remains
foreign 'with respect to the ! tariff laws ,
until Congress has acted' by embracing
It within thecustoms of the1 Union, pre
supposes that a: country may.be.dpmestic
for one purpose and foreign forranother.
It may undoubtedly become heoessary.for
the adequate administration of a domestic 1
territory to pass a special act providing
the proper machinery and officers, as the
President would have no authority, ex
cept under the war power, to administer
it himself, but no act is necessary to
make it domestic territory if once it has
been ceded to the United States. We ex
press no opinion as to whether Congress
Is bound tp appropriate the money to
pay for It. This has been ,much dis
cussed by writers upon Constitutional
law. but It is not necessary to consider
in this case, as Congress made prompt I
appropriation of the money stipulated in
the, treaty. This theory also presup
poses that territory may be held Inde
finitely by the United States; . it ma
be treated in every particular .except for
tariff purposes as domestic territory; that
laws may be enacted and enforced by
officers of the United States, sent there
for that purpose; that Insurrections may
be suppressed, wars carried on, revenues
collected, taxes Imposed; in short that
everything may be done which a govern
ment can do within its own boundaries
and yet that the territory shall remain
a foreign country: that this state of
things, may continue for years, for a
century . even, but that unless Congress
enacts oiherwlse it still remains a for
eign country. To hold that this can.be
done as a matter of law we deem to be
.pure, judicial legislation. We find no
warrant ror it in tne misuiuuuii r
the powers conferred upon this court It
is true .the non-action of Congress may
occasion a temporary Inconvenience., but
It dqes nq,t follow that courts of justice
are authorized to remedy It by inverting
,the ordinary meaning of wprdp.
R'eversed and "Remanded!
r,If an act of Congress be necessary, to
convert a foreign country into' domestic
territory .the question at once suggests
itself, what is the character of the legislation-demanded
fpr this purpose?. Will
an act appropriating, money for, its pur
chase be sufficient? Apparently, not Will
an act appropriating the duties collected
upon Imports to and from, such country,
for the benefits o'f Its government be suffi
cient?. Apparently not. Will acts making
appropriations for its postal service for
the establishment of lighthouses, for the
maintenance of quarantine stations, for
erecting public, buildings, have that ef
fect? Will" an act establishing a com
plete local government but with the re
servation of a right tocolIect duties up
on commerce be adequate for that pur
pose? None of these, nor all together,
will be sufficient if" the contention of the
Government be sound, since acts embrac
ing all these provisions have been passed
In connection with Porto Rico, and It is
irislsted -that it is still a 'foreign country
.within the meaning- of the tariff -laws.
We are unable to actfulesce In this as
sumption that a territory may be at-the
same time both foreign and domestic.
"A single further point remains to be
considered: -
"It is Insisted that an act of Congress,
'passed March 2, 1900 (31 Stat. 151), ap
plying for the benefit of Porto Rice the
amount of customs revenue received on
importations by the United States from
Porto Rico since the evacuation of Porto
Rico by the Spanish forces, October 18,
1S98, to January 1. 1900, together .with
any further customs revenues collected
on Importations from Porto Rico jslnce
January 1, 1900, or .shall hereafter be col
lected under existing law, Is a recognition
by-Congress of the right to collect such
duties as upon importations from a for
eign country, and are recognition of the
fact that Porto Rico continued to bea
foreign country until Congress embraced
it Within the customs union. It .may be
seriously questioned this is anything more
than a recognition of the fact-that there
were monevs In the territory not , sub
ject to existing appropriation. Jaw. Per
haps -we may go further and. sax. that
so far as these duties were paid volun-s
tarily and without protest the legality
of- the nayment was intended to .be re
cognized; but- it can clearjy haye.. no
retroactive effect, as to moneys"; therefor
paid under protest for which an action
t recover back had: already been brought.
r As the action in this case was broush..
March 13. 1900. 11 days before tne
act was passed, the right to recover the
money sued for could not be taken away
by a subsequent act of OougreSs. Plain
tiff sues In assumpsits for money which
the Collector has in. hands, justly and
equitably belonging to them. To say that
Congress coUId by a subsequent act de
prive them of the right td prosecute this
action would be beyond Us power. In
any event It should not be interpreted
so as to make If retroactive.
"We are therefore of the opinion that
.at the time these duties were levied Porto
Rico was not a foreign -country within the
meaning of the tariff laws, but a territory
of the United States, that the duties were
illegally exacted, and that the plaintiff
are entitled to recover them back.'
"The judgment of the Circuit Court for
the .Southern. Dtrlct. of. New York h
therefore reversed and the case remanded
to, -that court for further proceedings In
consonance with this opinion."
THE'CHINESE 'INDEMNITY.
Probable Early Settlement Regarded
' " ai an American Vlistory.
PEKIN. May 27. It -Is probable that
Great Britain's proposition limiting the
indemnity tD be demanded from China to
45O.COO.O0O taels "will be agreed to by the
end of the week. United States Special
Commissioner Rockhlll thinks this may be
considered an American victory.
Probable Acceptance Confirmed.
LONDON. May. 28. Wiring to the Times
from Pekln vesterday evening. Dr. Morri
son confirms assertions of the probable-
acceptance of the British Indemnity pro
posal. He 'says: "The powers will agree
to begin the' evacuation on the Issue of an
imperial edict admitting that China's In
debtedness is 45O.O00.OC0 taels. plus in
terest, and that .China will willingly com
ply." . ' -
GERMANS IK CHIXA. T
Tliey Do Not Propose to Leave Are
' " After Two Province.
NEW YORK, May 27. Prince Oukhtom
sky, president of the.Russo-Ch!nese Bank,
who 4s described as knowing the. Chinese
as having studied, them, and. as having,
lately spent four months at Pekin, is
minted at some length on the Chinese
question ih.a St. Petersburg dispatch to-
the Herald. In tne course oi an interview
he'said:
" "I did not 'see Count" 'von Waldersee at
Pekin, but -every one there knew that
Wfelt "tne uselessness of his position. The
Kaiser thought Pekin could be taken wlth
a battalion. So it coum, dui mo oanai
lon could 'not stop there. That Is what
he. did, not understand. He did not com
prehend the tenacity and. silent resisting
power of the Chinese, who have the char
acter of the Flnlaper and the charac
teristics of Turanian blood. The Chinese
.will never fo'rglve. and never forget. There
is no. fear. with them. They would not
care If as many'more of them were sac-(
rlficcd." f -
"Do. they hate Germans particularly?'
. "No; they dislike us all about equally,
and now more than ever."
"What would have been the right
course to pursue?"
"Retire at once after the legations had
been rescued, and treat the Chinese as
barbarians, with whom we would have
no more Intercourse. ' JIad that been done,
Li Hung Chang and the rest of the Man-'
darlns would ' have come running down
after us. Instead of that, and I look upon
it as a sham? that Russian representa
tives should be In such a position. Minis
ters' are 'running after Li Hung Chang,
bowing, scraping and craving audiences
with "him."
"Should Germany' hot evacuate Pekin
before' the wet season comes on?"
"When the season commences the lega-1
ttoris cannot "remain in the city.1 They will'
have to go dp to the hills. They will
go with' a"small guard of soldiers. -'"Wtiat
wlirhappen'theri?'-"' - ""'
" "In the recent truble over which there
were' "such great' difficulties, 'only one ofi
the' legations was attacked. The prob
ability Is that,the Chinese are now m6re
angry' and excited than ever, and will at
tack .all the legations. Remember, the
Chinese are very bitter, and have much
right to be so.. The pillaging at Pekin
was something" awful. Pekln was fabu
lously rich."
Prince Oukhtomsky said further of the
situation:' v
"The Germans do not mean to get out
of China at all. That was what every
body knew who was In Pekln. It was
the common talk of every German there,
and they made no attempt at concealing
the object of their mission, which was to
stay."
"But what do they want?"
"The provinces 'Of Chan Tung and Chi
Li, adjacent to' "us in Manchuria, a ter
ritory with 2f),O00 of "Chinese. Inhabitants.
They want "Y,angtse,. but only for trading
purposes.., All this they look . upon as a
.colony for Germany." .
. TJroops Leave Chinn.
WASHINGTON, May 27. A dispatch re
ceived at the War Department from Gen
eral Chaffee at Taku says that-the trans
ports Sumner and Lennox sailed today,
and that all of the troops that are to
leave China are 'off for Manila.
Considered for President.
NEW 'YORK, May 27. The Mall and
Express" says today:
"Three 'candidates for the presidency of
the New York Central, to succeed Sam
uel R. Callaway, are being seriously con
sidered by the directors. They are E. V.
W Rosslter, Vice-president of the com
pany; Edgard " Van Etten, general su
perintendent of the Central, and E. Dick
inson, general manager of the Union Pa
cifier W. M. H-. Newman, president of
the Lake Shore road, is a possible candi
date, but It la said on good authority that
Mr. Newman prefers to. keep his own .po
sition.
The diseases most feared are those -which are
inherited handed down from generation .to gen
eration, and family to family. By far the most
destructive of these is Cancer, wnich finds the .
greatest number pf its victims among the children
and grand-children ot those wnose Diooa was xaimeu
with this dreadful malady. . You may carry this poison in the blood for years, but
as the vital powers begin -to wane a alight bruise or cut, wart or mole, sore or
pimrjle may develop into Cancer. From middle life to old age is the time when
the slumbering poison is most apt to break out, a sore or -ulcer often degenerating
into Cancer, "and Tumors become more progressive and yilcerate through the akin,
th6 sharp, shoqtiog pains, causing the most intense suffering.
The Cancer patient naturally grows despondent as one after another the usual
remedies fail, and the sore shows no sign of 'healing. The impurities that have
been accumulating in the"system, perhaps for generations, cannotbe eliminated nor
the poisoned blood made pure by salves, washes and plasters. The proper treatment
is to purify and build up the blood, remove the .cause, yrhen the sore or ulcer heals.
,
Mr. J. 3. Arnold, of Greenwood, 23. u., "wntea: &s
tiny ulcer came, just under tho left eye. It began'
spreading, and, grew worse rapidly, destroying tho
flesh as It went. As Cancer is hereditary in my family
I became thoroughly alarmed, consulting the best phy
sicians and taking- many blood medicines, none of
which did mo any good," when one of our leading-dxugfflsts--
advised me to try S. 8 S, and by the time
I had taken the second bottle the Cancer began to
show signs of healing, the discharge gxew gradually -loses-
and. flnally ceased altogether, tha sore dried, up
and nothing- iom.ain& bnt a slight soar, I fool that I
owe ay life to fl. . S.".- ,
wait until the blood is so polluted and the system so thoroughly saturated with the
poison that -no medicine, however efficacious, can check theprogress pf the disease.
If there is a-taint in your.blood.get it.out at once, don't wait for some external evi
dence of it, the appearance of a tumor or ulcer. "We have prepared a special book
on Cancer which we will mail free. Our physicians are ready to helpyou-by then
advice and" such direction as your case" requires. Write us fully and freely no
charge lor medical advice. THE SWIFT SPECIFIC CO., ATLANTA. O A.
JM'lTWWA ft f Q-Q F N T F H
IL.I14.11 UA 3-vJ JL 11 1 LU
PORTO RICO. .AS "FOREIGN,' LAXD1
IffOT ONLY QUESTION. '
In His View) the Controversy Could
Not Tarn on So Easy a
- Definition."" "
WASHINGTON, May 27.rHJust!ce Mc
Kenna read a dissenting opinion in the
Delima case, stating that Justices Shlras
and White joined In his views. The ma
jority, he said, proceeded- on the simple
proposition that to settle whether Porto
Rico la a "forelsn. country" or "domestic
territory" is to settle the controversy In
litigation In the particular case. But In
his view It could not turn on so easy a"
definition. Between the extremes there
were other relations which Porto Rico
might sustain. tP,the United States and
It could be determined that Porto Rico oc
cupied one of these other relations, and
Ifs products, hence, were subject 16 du
ties. The history of our country, said Justice
McKenna, has examples of the acquisi
tion of foreign terrltbry, examples of
what relationship territory bears' to the
United States authorities, executive, leg
islative and Judicial; as to what was wise
in statesmanship, as well as what was
legal and constitutional in withholding or
extending our laws to "Such territory; a'nd,
finding these examples and authorities in
the way, the opinion of the court at
tempts to answer or distinguish or over
rule them.
He then cited the case df the United
States vs. 'Rice, and Fleming vs. Page;
referred to the majority, and said that
the latter attempted to reconsider them,
and dismissed a large part of Chief Jus
tice' Taney's decision in the Page case as
dicta. He thought both cases reconclla.
ble on the ground that both recognized
inevitable conditions. Such recognition
made government provident, and not hap
hazard. It left to the executive and -the
legislative departments that which per
tains 'to -them. The opinions expressed in
Fleming vs. Page that the boundaries of
our country could not be enlarged or re
stricted by the advance- or retreat of
armies, and that whether duties should be
levied dependent on Congress granting
authority, should be accepted as wise and
considerate of the different functions of
the executive, legislative and judicial de
partments, and of their independence
why should it then be discarded as dic
tum? -
Justice McKenna called attention to the
fact that after California's 'annexation
our customs law3 had been extended over
It, and asked why this was necessary. If
they applied of their own force. He also
controverted other historical precedents
cited by the majority, and then attacked
the majority for asserting that without
precedent It would be Irresistibly Impelled
to the conclusion that by accession of ter
ritory, territory automatically became a
part of the United States. -The treaty,, he
said, could-not have an automatic force,
contrary to Its terms or greater than
them. Whether Porto Rico was a for
eign country within the meaning of the
revenue laws depended on the treaty.
Justice Gray announced that he like
wise dissented from the majority opinion,
saying briefly that Its judgment appeared
to him irreconcilable with the Unanimous
opinion of this court In Fleming vs. Page,
and with the opinions of the majority of
the Justices in 'the case today decided of
Downes vs. Bidwell.
i
Judgment in Two Cases Reversed.
WASHINGTON. May 27. Justice
Brown, of the Supreme Cqurt, announced -
that the court, following the authority or
the Delima case, reversed the judgments
of the court below In the cases of Goetze
vs, the United States and Croasman vs.
the,Unltea States, both br.ought.here from
the. United States Court ofjhe southern
district of New York. . .
In the Goetze case a.duty levied on an
Importation of ."tobacco from Porto Rico
Into the United States on June 6. 1899,
after"the ratification of th'e peace treaty
and before the passage 'of the Porto' Rlcan
act was Involved, and In the Crossman
case the levy of a duty on an importation
of liquor from Hawaii Into the United
States in April, 1900, after the passage of
the Hawaiian annexation resoltulon, and
before the taking effect of the act pro
viding a government for Hawaii. In each
case the Board of General Appraisers held
the Importation dutiable, and In each case
the decision was reversed. ..
BRYAN EOR TJLLMAN.
Thinks Letter's Row With McXaurin
Will Prove Beneficial.
-LINCOLN, May .27. W. J. Bryan gave
out today a statement on the resignation
of Senators McLaurln and Tillman, which
he says he regards as the political event
of last week. Mr. Bryan says:
"It is an honorable course for the Sen
ators to pursue and beneficial to the
state. At present South Carolina virtually
has'Tio voice in the settlement of public
questions as the vote of one Senator kills
the vote of the other, Senator Tillman
has Just been re-elected and thus risks
the loss of a longer term, but Senator
ilcLaurln ' really sacrifices more, because
he has less chance to win the primary."
Mr. Bryan added that it was hardly
necessary td say that he hoped and ex
pected to see Senator Tillman win a
sweeping victory, "because he represents
the man. while McLaurln represents the
dollar. The vote will- show whether the
plutocratic Idea is making any headway
in tho South."
L j i -
Protest Against Rules of Railroad.
OTTAWA, Ont, May 27. All the broth
erhood and train service orders have
joined In a protest against the amended
rules of the Canadian Pacific Railway,
and an appeal has been made to the rall-
wav committee of the privy council,
W Wf W CIA9 Wiii.V.UJ
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-Hood's Sarsaparills relieves all
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