justices dissenting, that Congress could, after the acquisition of Porto Rico as territory of the United States,28 impose duties upon importations into ports of the United States from Porto Rico, and into ports of Porto Rico from the United States and foreign countries, differing from the duties imposed upon importations into the United States from foreign countries. In Hawaii v. Mankichi 29 the court also held that a citizen of Hawaii could, after the acquisition of that island as territory of the United States, be legally convicted of crime without indictment by a grand jury and by the verdict of only a majority of a petit jury.

In Dorr v. U. S.,30 the question was, whether in the absence of a statute of Congress expressly conferring the right, trial by jury is a necessary incident in judicial procedure in the Philippine Islands, where demand for trial by that method has been made by the accused and denied by the courts established in the islands. A majority of the court held that a trial by jury is not necessary to the validity of a conviction, sentence, and punishment for crime in the Philippine Islands.31 It is possible that a he had paid under protest upon the importation into the city of New York of certain oranges from the Port of San Juan, in the Island of Porto Rico, in November, 1900, after the passage of the act known as the Foraker Act. The various reasons advanced by the judges in reaching this conclusion, which were not concurred in by a majority of the court, are plainly not binding. In that view Fuller, C. J., and Brewer, J., concurred.

28 Act of 12th April, 1900, 31 Stat. 77, c. 191.

29

190 U. S. 197. Fuller, C. J., and Harlan, Brewer and Peckham, JJ., dissented.

30 195 U. S. 138.

31

1 Day, J., delivered the judgment of the court, and Fuller, C. J., and Brewer and Peckham, JJ., concurred in the result upon the authority of Hawaii v. Mankichi, 190 U. S. 197. Harlan, J., dissented, saying, p. 154: "In my opinion, guaranties for the protection of life, liberty, and property, as embodied in the Constitution, are for the benefit of all, of whatever race or nativity, in the states composing the Union, or in any territory, however acquired, over the inhabitants of which the government of the United States may exercise the powers conferred upon it by the Constitution."

mistake was made in these cases in not distinguishing between the congressional powers of general, and of local, government as affecting the territories, and in not holding that the Act of 12th April, 1900, was, in so far as it imposed duties, an act of general, and not of local, legislation, and, as such, subject to constitutional restrictions, and in not holding that the Constitution equally protects every inhabitant of any state or territory in his rights of person and of property. Mr. Justice White 32 concedes that a duty levied in the United States on goods coming from Porto Rico is not a local tax and, therefore, not an exercise of the power of local government, but he supports the validity of such a tax upon the theory that Porto Rico had not been "incorporated" into the United States. Mr. Chief Justice Fuller 33 seems to answer this view by calling attention to the provisions of the act imposing the duty, and at the same time creating a civil government for Porto Rico, constituting its inhabitants a body politic, giving it a governor and other officers, a legislative assembly, and courts with the right of appeal therefrom to the Supreme Court of the United States, and thereby making that island, whatever its situation before, then and thenceforth an organized territory of the United States; and Mr. Justice Harlan 34 pertinently suggests, that "if Porto Rico, although a territory of the United States, may be treated as if it were not a part of the United States, then New Mexico and Arizona may be treated as not parts of the United States, and subject to such legislation as Congress may choose to enact without any reference to the restrictions imposed by the Constitution." The same learned justice also said 35 that the doctrine of

the Insular Cases means, "that, if the principles now announced should become firmly established, the time may not be far distant when, under the exactions of trade and commerce, and to gratify an ambition to become the dominant political power in all the earth, the United States will acquire territories in every direction, which are inhabited by human beings, over which territories, to be called 'dependencies' or 'outlying possessions,' we will exercise absolute dominion and whose inhabitants will be regarded as 'subjects' or 'dependent peoples,' to be controlled as Congress may see fit, not as the Constitution requires, nor as the people governed may wish.”

It may well be doubted whether the advantages, commercial and otherwise, obtainable by the acquisition and retention of foreign colonial possessions will ever compensate the country for their cost in lives and in money, and for the difficulties to be encountered in the extension of free institutions and constitutional government to peoples, whose history and traditions are foreign to any such system. But as we have acquired colonial possessions, and have, by reason of such acquisition, assumed obligations to them, and to foreign nations, all that can now be done is to govern those peoples kindly, justly, and firmly, and to educate them s rapidly as possible for the duties of citizenship.

CHAPTER II.

THE IMPLIED POWERS.

9. The necessity of their existence.

10. Their constitutional recognition.

11. The test of the relation of the means to the end. 12. Illustrations of the exercise of the implied powers. 13. The legal tender question.

The necessity of their existence.

9. The Constitution was not framed to meet only the exigencies of the period of its formation, nor does it purport to be a code which with minute detail prescribes all that may be done and all that may not be done by Congress in the execution of the powers specifically granted.1 As Mr. Webster said in his argument in Gibbons v. Ogden,2 and as Marshall, C. J., repeated in his judgment in that cause,3 the Constitution enumerates, but does not define, the powers which it grants, nor does it prescribe the means which may rightfully be used in executing those powers, and without whose use the grant of the powers would be nugatory. Therefore, if the Constitution contained no clause recognizing the existence of powers which are subsidiary or incidental to the powers expressly granted, it would be impossible to avoid the conclusion that there is an implied grant of such incidental powers, for otherwise the powers expressly granted would be practically inoperative. Nor is the force of this conclusion at all affected by the X Amendment, for while

1

1 McCulloch v. Maryland, 4 Wheat. 406; Martin v. Hunter's Lessee, 1 id. 326.

26 Webster's Works, 9.

39 Wheat. 189.

'McCulloch v. Maryland, 4 Wheat. 407.

that amendment in terms forbids the exercise by Congress of any undelegated power, it does not forbid the exercise of powers which are delegated by implication.5

Their constitutional recognition.

10. Section 8 of Article I of the Constitution declares that "the Congress shall have power. . . to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof." But, it may be said, who is to conclusively determine whether or not any statute is, within the terms of the Constitution, "necessary and proper for carrying into execution" a power granted by the Constitution to Congress? If Congress can so determine, obviously any and every act of Congress must be regarded as constitutional. If in the exercise of judicial jurisdiction the final determination of that question is to be made by the court, what principles are to guide the judges in coming to a conclusion, and by what test are they to determine the relation between the means and the end, and the degree of the necessity and the propriety of the use of the particular means?

The test of the relation of the means to the end.

11. The result of the authorities, so far as they afford an answer to this question, can be best stated by the quotation of a famous dictum originated by Mr. Hamilton and paraphrased by Chief Justice Marshall in the judgment in McCulloch v. Maryland,' and which, in its

Mr. Hamilton's argument as to a national bank. 3 Lodge's Hamilton's Works, 183; McCulloch v. Maryland, 4 Wheat. 406.

Argument as to a national bank. 3 Lodge's Hamilton's Works, 190.

74 Wheat. 421.