the Constitution are at once applicable to all territories subject to the sovereignty of the United States, and therefore require no act of Congress for their extension, nor can their application to such territories be denied by Congress.

These four justices were the same that had dissented from the judgment in the De Lima v. Bidwell case, which decided that by the treaty of cession Porto Rico at once ceased to be "foreign territory" within the meaning of the federal tariff laws. Reaffirming this/ same opinion in the Downes case, they asserted that by the ratification of the treaty of cession Porto Rico came under the sovereignty of the United States, or, to use their own expression, became "appurtenant to it, but was not thereby "incorporated" into the "United States." In other words, it became a terri tory belonging to the United States but not, when looked at from a constitutional viewpoint, a part thereof. To effect this latter change of status, they declared, the treaty-making power is incompetent, the approval of Congress, express or implied, being required.

Without attempting even a summary of the legislative acts and judicial expressions which these justices claimed supported them in their view, we may profitably reproduce their conclusion in their own. words: "It is," they said, . . . "indubitably settled by the principles of the law of nations, by the nature of the government created under the Constitution, by the express and implied powers conferred upon that government by the Constitution, by the mode in which those powers have been executed from the beginning,

and by an unbroken line of decisions of this Court, first announced by Marshall and followed and lucidly expounded by Taney, that the treaty-making power cannot incorporate territory into the United States without the express or implied assent of Congress, that it may insert in a treaty conditions against immediate incorporation, and that, on the other hand, when it has expressed in the treaty the conditions favorable to incorporation, they will, if the treaty be not repudiated by Congress, have the force of the law of the land, and therefore by the fulfilment of such conditions cause incorporation to result. It must follow, therefore, that where a treaty contains no conditions for incorporation, and, above all, where it not only has no such conditions, but expressly provides to the contrary, that incorporation does not arise until in the wisdom of Congress it is deemed that the acquired territory has reached that state where it is proper that it should enter into and form a part of the American family."1

As has been already said, according to the view of these four justices, the Constitution is the charter of government not only of the States but also both of the territories that have been incorporated into the Union and those merely appurtenant to the United States. Every function of the Federal Government, they de

1 Article IX of the Spanish-American treaty contains the following clause: "The civil rights and political status of the native inhabitants of the territories hereby ceded to the United States shall be determined by Congress." Spanish subjects, natives of Spain, are by the same article to be permitted to elect whether they will become United States subjects or retain their Spanish citizenship.

clare, is derived from the Constitution and that instrument is everywhere potential so far as its provisions are applicable. Therefore, "in the case of the territories, as in every other instance when a provision of the Constitution is invoked, the question which arises is, not whether the Constitution is operative, for that is self-evident, but whether the provision relied on is applicable." Starting, then, with this principle and the premise that Porto Rico was not by the treaty of cession incorporated into the United States, these justices proceed to determine what provisions of the Constitution are applicable to it.

The limitations placed by the Constitution upon the powers of Congress they divided into two classes which correspond quite closely to the two classes recognized by Justice Brown. "Undoubtedly," they said “there are general prohibitions in the Constitution in favor of the liberty and property of the citizen, which are not mere regulations as to the form and manner in which a conceded power may be exercised, but which are an absolute denial of all authority under any circumstances or conditions to do particular acts." These prohibitions are operative upon Congress when legislating for territories whether incorporate or merely appurtenant.

Upon the other hand, they asserted, there are limitations upon the powers of Congress which apply only when that body is enacting laws for the United States, that is, for the States and the incorporated territories. Among the limitations of this sort, they held, is the one involved in the case then decided, providing that all duties shall be uniform "throughout the United

States."

Therefore, they held, that that portion of the Foraker Act which provided for Porto Rico a tariff different from that in force in the United States was not unconstitutional.

Four justices dissented both from the judgment rendered in this case and from the reasonings by which it was supported. According to their view there is no constitutional distinction to be drawn between territories incorporated into the United States and territories unincorporated or merely appurtenant to the United States. States and territories, they declared, are the only political units known to American Constitutional Law, and when, by a treaty of cession and actual occupation, lands and their inhabitants have come under the sovereignty of the United States, such lands are a part of the United States, and no approving act of Congress is needed or is efficient to increase the constitutional privileges to which they are entitled and to make effective the legislative limitations upon the powers of Congress. This view they showed to have been the one almost uniformly accepted by all three of the departments of the General Government since the adoption of the Constitution. Especially they relied upon the case of Loughborough v. Blake (5 Wh., 317), which had never been overruled, in which Chief Justice Marshall, when asked to hold that the District of Columbia was not a part of the United States, declared: "Does this term [the United States] designate the whole or any particular portion of the American empire? Certainly this question can admit of but one answer. It is the name given to our great republic, which is composed of States and territories.

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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."

In the separate opinion which he prepared, Justice Harlan was especially emphatic in his repudiation both of the doctrine asserted by Justice Brown that the Constitution was created "by the people of the United States, as a union of States, to be governed solely by representatives of the States," and of the theory of the other four justices as to the status of "unincorporated" territories.

In order fully to appreciate the radical character of the doctrine held by the four justices who concurred with Justice Brown in the judgment in the Downes case, it is necessary clearly to appreciate that it was held, in effect, that this so-called incorporation of a territory by Congress into the United States is not an act the commission of which is to be determined by facts, but only by the formal declaration of an intention expressly declared by Congress. So long as this intention is not asserted, a territory is declared to remain unincorporated into the United States notwithstanding the fact that, as was the case in Porto Rico, a complete territorial government may have been created, federal courts established, with the right of appeal therefrom to the United States Supreme Court, and all the local officials required to take an oath to support the Constitution of a Union of which they were not a part. Especially