THE CHAPTER XIV CONSTITUTIONAL STATUS OF TERRITORIES: THE CIVIL RIGHTS OF THEIR INHABITANTS THE Constitution of the United States contains a number of express limitations upon the federal legislative power. In addition to those contained in the first ten amendments relative to freedom of religion, speech, and press, the quartering of troops, the right of the people to assemble, to petition, to keep and bear arms, to be secure against unreasonable searches and seizures, to presentment or indictment by jury, to speedy trial, to juries in civil suits, to immunity from excessive bail and fines and cruel and unusual punishments, etc., it is elsewhere provided in the Constitution that all duties, imposts, and excises shall be uniform throughout the United States, that the writ of habeas corpus shall not be suspended, except under certain specified circumstances, that no bill of attainder or ex post facto law shall be passed, no capitation or other direct tax laid except in proportion to population, no duty laid upon goods exported from a State, no commercial preferences given to the ports of one State over those of another, no money drawn from the treasury but in consequence of an appropriation made by law, no title of nobility granted, etc. The Thir teenth Amendment also declares that "neither slavery nor involuntary servitude, except as punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction." When legislating for the States or their inhabitants these limitations have of course to be observed. The question whether the same is true when Congress is legislating for the territories and their populations has, however, been recently subjected to a most severe debate, and even now only a partial settlement of it. by the Supreme Court has been obtained. The answer to this question has involved a reëxamination of the fundamental nature of the federal Constitution and of the purposes for which it was framed and adopted. By a series of judgments rendered in the recently decided "Insular Cases," the Supreme Court has determined the following points. In the case of De Lima v. Bidwell (182 U. S., 1), decided May 27, 1901, a majority of the justices-five out of nine-held that immediately upon the ratification of the treaty of peace with Spain in 1898, ceding Porto Rico to the United States, that island, being already in the possession of the United States, ceased to be foreign territory and came under the sovereignty of the United States, with a result that the existing tariff act, which by its terms applied to imports from "foreign countries," no longer was applicable to goods coming to the United States from Porto Rico. In a later case the same doctrine was applied to the Philippine Islands, the point being overruled that, because of the resistance at the time being offered to American occupation by the natives, the United States was not in actual possession of them.1 In both cases four justices dissented, not, however, upon the ground that these islands had not come under the sovereignty of the United States, but because, as they thought, the necessary act of Congress subjecting them to the revenue laws of the United States had not been passed. The doctrine of the minority, in other words, was, that the mere act of cession, ratified by the treaty-making power, did not of itself extend over the ceded territory the government and laws of the United States, but that to effectuate this there must be either an express provision in the treaty itself to that effect or a subsequent act of Congress. In the case of Downes v. Bidwell (182 U. S., 244), decided May 27, 1901, five of the nine justices of the Supreme Court concurred in holding that, though by the treaty of cession the island of Porto Rico came under the sovereignty of the United States, and, when viewed from the standpoint of all other nations became a part of the United States, yet, when looked at from the viewpoint of its own public law, it did not become a part of the "United States" as that term is used in the Constitution. In order to arrive at this conclusion one of these five justices-Brown-reasoned as follows: After calling attention to the fact that, as decided in the case of De Lima v. Bidwell, by cession by treaty with a foreign power, a territory, already in the actual possession of the United States, at once ceased to be 1 Fourteen Diamond Rings v. United States, 183 U. S., 176, decided December 2, 1901. foreign and became domestic territory, he pointed out that the cases under consideration involved the further and more important question whether upon becoming domestic territory the provisions of the federal Constitution were extended of their own force over annexed territories. The Constitution not itself directly giving an answer to this, the solution, he said, would have to be found in the nature of the government created by that instrument. According to this justice's view, this instrument was created, if not by the States, at least exclusively for the States, and not for the territories or any other extra-State lands that might belong to the United States. Thus, to quote his own words, "It can nowhere be inferred that the territories were considered a part of the United States. The Constitution was created by the people of the United States, as a union of States; and even the provision relied upon here, that all duties, imposts, and excises should be uniform 'throughout the United States' is explained by the subsequent provisions of the Constitution, that 'no tax or duty shall be laid on articles exported from any State,' and 'no preference shall be given by any regulation of commerce or revenue to the ports of one State over those of another; nor shall vessels bound to or from one State be obliged to enter, clear, or pay duties in another.' In short, the Constitution deals with States, their people and their representatives. The Thirteenth Amendment to the Constitution prohibiting slavery and involuntary servitude 'within the United States, or in any place subject to their jurisdiction' is also significant as showing that there may be places within the jurisdiction of the United States that are no part of the Union. . . . Upon the other hand, the Fourteenth Amendment, upon the subject of citizenship, declares only that 'all personsy born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States, and of the State wherein they reside.' Here there is a limitation to persons born or naturalized in the United States, which is not extended to persons born in any place 'subject to their jurisdiction.' To restate, then, the position of Justice Brown, it would appear that, according to his view, the "United States," when looked at from the domestic or constitutional viewpoint, includes only the individual States such as Virginia, New York, Texas, etc., in Union. The Federal District, the territories, and, in fact, all areas not within the boundaries of some one of these States, though under the national sovereignty, are not a part of the Union. Looked at, however, from the international viewpoint, the term United States has, as Justice Brown later observes, "a broader meaning than when used in the Constitution, and includes all territories subject to the jurisdiction of the Federal Government, wherever located. In its treaties and conventions with foreign nations this government is a unit. This is so, not because the territories comprise a part of the government established by the people of the States in their Constitution, but because the Federal Government is the only authorized organ of the territories, as well as of the States, in their foreign relations."' 1 1 Citing De Geofroy v. Riggs, 133 U. S., 258. MAT |