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SUPREME COURT OF THE UNITED STATES. tue of the treaty, ceded conquered territory, or terri

tory ceded by way of indemnity. The territory No. 158.— OCTOBER TERM, 1901.

ceased to be situated as Castine was when occupied OPINION FILED DECEMBER 2, 1901.

by the British forces in the war of 1812, or as Tam

pico was when occupied by the troops of the United THE DIAMOND RINGS.

States during the Mexican war, “cases of tempo

rary possession of territory by lawful and regular In crror to the District Court of the United States governments at war with the country of which the for the Northern District of Illinois. territory so possessed was part.” The Philippines

were not simply occupied but acquired, and having TARIFF LAWS - PHILIPPINE ISLANDS NOT been granted and delivered to the United States, by FOREIGN COUNTRY.

their former master, were no longer under the

sovereignty of any foreign nation. Diamonds acquired by a soldier in the Philippine

In Cross v. Harrison (16 How. 164) the question Islands after the ratification of the treaty between

was whether goods imported from a foreign country the United States and Spain, February 6, 1899, when into California after the cession were subject to our brought by him 10 California, are not subject to tariff laws, and this court held that they were.

In De Lima v. Bidwell the question was whether duties imposed by the act of 1897, on “articles imported from foreign countries."

the goods imported into New York from Porto Rico, Mr. Chief Justice Fuller delivered the opinion the act of 1897 on “articles imported from foreign

after the cession, were subject to duties imposed by of the court.

countries," and this court held that they were not. Emil J. Pepke, a citizen of the United States and That act regulated commerce with foreign nations, of the State of North Dakota, enlisted in the First and Porto Rico had ceased to be within that category, Regiment of the North Dakota United States Volun- nor could territory be foreign and domestic at the teer Infantry, and was assigned for duty with his

same time. regiment in the Island of Luzon, in the Philippine Among other things it was there said: “The Islands, and continued in the military service of the theory that a country remains foreign with respect to United States until the regiment was ordered to the tariff laws until congress has acted by embracing return, and on arriving at San Francisco, was dis- it within the customis union, presupposes that a councharged September 25, 1899.

try may be domestic for one purpose and foreign for He brought with him from Luzon fourteen dia- another. It may undoubtedly become necessary for mond rings, which he had there purchased, or ac- the adequate administration of a domestic territory quired through a loan, subsequent to the ratification to pass a special act providing the proper machinery of the treaty of peace between the United States and and officers, as the president would have no authorSpain, February 6, 1899, and the proclamation thereof ity, except under the war power, to administer it by the president of the United States April 11, 1899. hiniself; but no act is necessary to make it domestic

In May, 1900, in Chicago, these rings were seized territory if once it has been ceded to the United by a customs officer as having been imported con- States.

This theory also presupposes that trary to law, without entry, or declaration, or pay- territory may be held indefinitely by the United ·ment of duties, and an information was filed to States; that it may be treated in every particular, enforce the forfeiture thereof.

except for tariff purposes, as domestic territory; that To this Pepke filed a plea setting up the facts, and laws may be enacted and enforced by officers of the claiming that the rings were not subject to customs United States sent there for that purpose; that insurduties; the plea was held insufficient; forfeiture and rections may be suppressed, wars carried on, revenues sale were decreed, and this writ of error was collected, taxes imposed; in short, that everything prosecuted.

may be done which a government can do within its The tariff act of July 24, 1897 (30 Stat. 151), in own boundaries, and yet that the territory may still regulation of commerce with foreign nations, levied remain a foreign country. That this state of things duties “lipon all articles imported from foreign may continue for years, for a century even, but that countries."

until congress enacts otherwise, it still remains a Were these rings, acquired by this soldier after the foreign country. To hold that this can be done as ratification of the treaty was proclaimed, when matter of law we deem to be pure judicial legislation. brought by him from Luzon to California, on his We find no warrant for it in the Constitution or in return with his regiment to be discharged, imported the powers conferred upon this court. It is true from a foreign country?

the non-action of congress may occasion a tempoThis question has already been answered in the rary inconvenience; but it does not follow that courts negative, in respect of Porto Rico, in De Lima v. of justice are authorized to remedy it by inverting Bidwell (182 U. S. 1), and unless the cases can be the ordinary meaning of words." distinguished, which we are of opinion they can not No reason is perceived for any different ruling as be in this particular, that decision is controlling. to the Philippines. By the third article of the treaty

The Philippines, like Porto Rico, became, by vir- Spain ceded to the United States “the archipelago

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known as the Philippine Islands," and the United or to place itself in the position of waging a war of States agreed to pay to Spain the sum of twenty mil- conquest. lion dollars within three months. The treaty was The sovereignty of Spain over the Philippines and ratified; congress appropriated the money; the ratifi- possession under claim of title had existed for a long cation was proclaimed. The treaty-making power, series of years prior to the war with the United the executive power, the legislative power, concurred States. The fact that there were insurrections in the completion of the transaction.

against her or that uncivilized tribes may have deThe Philippines thereby ceased, in the language of fied her will did not affect the validity of her title. the treaty, “to be Spanish.” Ceasing to be Spanish. She granted the islands to the United States, and they ceased to be foreign country. They came under the grantee in accepting them took nothing less than the complete and absolute sovereignty and dominion the whole grant. of the United States, and so became territory of the If those in insurrection against Spain continued in United States over which civil government could be insurrection against the United States, tlie legal title established. The result was the same although there and possession of the latter remained unaffected. was no stipulation that the native inhabitants should We do not understand that it is claimed that in be incorporated into the body politic, and none secur- carrying on the pending hostilities the government is ing to them the right to choose their nationality. : secking to subjugate the people of a foreign country, Their allegiance became due to the United States and but, on the contrary, that it is preserving order and they became entitled to its protection.

suppressing insurrection in territory of the United But it is said that the case of the Philippines is to ' States. It follows that the possession of the United be distinguished from that of Porto Rico because on

States is adequate possession under legal title, and February 14, 1899, after the ratification of the treaty, this cannot be asserted for one purpose and denied the senate resolved, as given in the margin.* that it for another. We dismiss the suggested distinction was not intended to incorporate the inhabitants of as untenable. the Philippines into citizenship of the United States,

But it is sought to detract from the weight of the nor to permanently annex those islands.

ruling in De Lima v. Bidwell because one of the five We need not consider the force and effect of a

justices concurring in the judgment in that case conresolution of this sort, if adopted by congress, not

curred in the judgment in Downes v. Bidwell (182 like that of April 20, 1898, in respect of Cuba, pre

U. S. 244). liminary to the declaration of war, but after title had

In De Lima v. Bidwell, Porto Rico was held not to

be a foreign country after the cession, and that a passed by ratified cession. It is enough that this was a joint resolution; that it was adopted by the senate prior act exclusively applicable to foreign countries by a vote of 26 to 22, not two-thirds of a quorum;

became inapplicable. and that it is absolutely without legal significance on

In Downes v. Bidwell, the conclusion of a majority the question before us. The meaning of the treaty

of the court was that an act of congress levying cannot be controlled by subsequent explanations of duties on goods imported from Porto Rico into New some of those who may have voted to ratify it.

York, not in conformity with the provisions of the What view the house might have taken as to the in- Constitution in respect to the imposition of duties, tention of the senate in ratifying the treaty we are imposts and excises, was valid. Four of the memnot informed, nor is it material; and if any implica- bers of the court dissented from and five concurred, tion from the action referred to could properly be though not on the same grounds, in this conclusion. indulged, it would seem to be that two-thirds of a

The justice who delivered the opinion in De Lima's quorum of the senate did not consent to the ratifica

case was one of the majority, and was of opinion that tion on the grounds indicated.

although by the cession Porto Rico ceased to be a It is further contended that a distinction exists in States and domestic, yet that it was merely “appur

foreign country, and became a territory of the United that while complete possession of Porto Rico was taken by the United States, this was not so as to the States within the revenue clauses of the Consti

tenant" territory and “not a part of the United Philippines, because of the armed resistance of the

tution." native inhabitants to a greater or less extent.

This view placed the territory, though not foreign. We must decline to assume that the government outside of the restrictions applicable to interstate wishes thus to disparage the title of the United States

commerce, and treated the power of congress, when “Resolved by the Senate and House of Representatives of the affirmatively exercised over a territory, situated as United States of America in Congrers assembled, That by the rati.' supposed, as uncontrolled by the provisions of the fication of the treaty of peace with Spain it is not intended to incor. Constitution in respect of national taxation. The porate the inhabitants of the Philippine Islands into citizenship of distinction was drawn between a special act in the United States, nor is it intended to permanently annex said islands as an integral part of the territory of the United States; but respect of the particular country, and a general and it is the intention of the United States to establish on said islands a prior act only applicable to countries foreign to ours government suitable to the wants and conditions of the inhabitants in every sense. The latter was obliged to conform of said islands to prepare them for local self-government, and in due

to the rule of uniformity, which was wholly disretime time to make such disposition of said islands as will best mote the interests of the United States and the inhabitants of said garded in the former. islands." Cong. Rec., 55th Cong., 8a Seas., vol. 32, p. 1847.

The ruling in the case of De Lima remained unaf


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fected, and controls that under consideration. And reform the professional labor reformers. It must this is so notwithstanding four members of the ma- awaken the judiciary. It must renovate the jails. jority in the De Lima case were of opinion that And above and beyond all it must wipe out the perPorto Rico did not become by the cession subjected nicious fee system which gives the constable so to the exercise of governmental powers in the levy many dollars for arresting a fellow-citizen, the jusof duties unrestricted by constitutional limitations. tice of the peace so many dollars for convicting

Decree reversed and cause remanded with direc- him and the sheriff so many cents a day for feeding tions to quash the information.

or starving him, as his humanity or avarice may dictate. Think of such traffic in human liberty in

this boasted home of the free, where each citizen PRISON REFORM.

is supposed to own a heritage of life, liberty and

the pursuit of happiness. The fee system was Superintendent Fuller, of the Michigan State

cloud upon the nineteenth century. It is a blot lipon Reformatory, read the following paper before the

the fairer pages of the twentieth century. I believe National Prison Association:

the day is not far distant when every person engaged " America has made mighty strides in its material directly or indirectly in the administration of justice advancement during the past ten years. Is prison will be placed upon a salary basis and his financial management keeping up with the procession? 1 reward for protecting the rights of the innocent will think that in most respects it is. I am sure that in be as great as his reward for convicting the guilty. one respect it is not. I refer now to the political Then the shameful spectacle of constables, marshals brigandage which is still prevalent in a few States and justices of the peace engaged like pawnbrokers the bold, bad brigandage which ruthlessly seizes not

or peanut venders in a scramble for business which only the prison, but all the other public institutions

may involve the sacred liberties of their fellowand holds them for political ransom. Honest, effi

men will be a thing of the past. cient, wise and humane prison management cannot

“ The judges must be awakened to a more intellireach its hi est stage of development until the out- !

gent discrimination between the first offenders, who raged taxpayers and the humanitarian take the

can be reformed, and the professional criminal, who ward heeler by the throat. The good citizen must

cannot be; and the probability of reform, rather than stand between the State institution and the political the nature of the offense, should govern the length plunderer. The good citizen must see that honesty, of sentence. A balky, vicious, kicking mule may efficiency, intelligence, progress and faithfulness to reform, but he seldom does. A midnight house duty have higher rewards from the people than mere

burgular or safe blower who continues to follow his ability to control delegations. To say that a free trade after one or two terms in prison may reform, government cannot long endure when public honors but he seldom does, except in dime novels and the are sold for cash is an observation on the case that minds of optimistic philanthropists. I believe that savors much of common place, and all the world

a life sentence is the only intelligent treatment for admits it.

this class of criminals, while the sentence of first " But a public official who buys his nomination or offenders is frequently too long. Indeed, I am conelection with his own money is less a menace to good | vinced that many first offenders can be better government than the one who buys it with the prom- reformed outside of prison than in the prison, under ise of such public patronage as may come within his 'the probation system or suspension or sentence now control. When he buys it with his own money he is in successful operation in several States. merely a common briber. When he buys it with the

“ Labor is the first requisite of prison reform. promise of public patronage he seizes your property Many get into prison because they have never learned and my property with which to pay his political

to work; many more because they have never debts and adds grand larceny to bribery.

learned to do anything well enough to hold a job." “ Think of a great railroad, a vast manufacturing enterprise or a bank, changing its management every two years because some fellow with a pull wants the

WOMEN AND TRIAL BY JURY. job. The stockholders would repudiate such a policy; and yet they see the great public institutions “ It seems queer to me," said Mrs. Pelton, tliat put up every two years as a prize in the political they had to go through all this bother with that game and only murmur in their sleep. The success- miserable Slozgopps, or whatever his name is. Why ful prison or institution manager is not born such. didn't they just hang him without so much fuss? He is made in the hard school of experience, just “My dear," Mr. Pelton explained, “it is evident as the successful railroad manager is, and, if the that you don't understand the first principle of people who foot the bills would reap the largest our glorious system of government. No man can returns from their large investments, they must pre- be legally deprived of his life in this country withvent the public institutions from being used as out first having a trial before a jury of his peers." political footballs.

“What do you mean by a jury of his peers? " “Prison reform must start further back than the asked Mrs. Pelton, who possesses a virtue that prisons. It must educate the law-makers. It must

too many people lack. When she don't understand


a thing she never hesitates to pour out questions him get up in court and lie. If the courts wouldn't for fear somebody may marvel at her ignorance. let him say anything but not guilty, why didn't they

“By a jury of his peers,” said Arbuthnot Pelton, ask him whether he was guilty or not guilty in the is meant a jury composed of his equals."

first place, and wh “Good gracious! exclaimed the lady,

are those

There was a swish, a chair was knocked over, jurors as low down as that? I didn't suppose they and when Marguerite Pelton reached the porch could find a dozen men in the country who were she saw her husband running away with all his the equals of that miserable whelp.”

might, without looking back to see whether he "Oh, but this is merely theoretical,” her husband was being followed or not.— Chicago Recordreplied.

Herald. “Well, if I were the wife of one of those men there wouldn't be any theoreticalness about it, I A PROPOSED ABOLITION OF THE COMMON can tell you that,” she said. “The idea of putting

LAW. them in the same class with such a hateful, lowdown brute! No wonder men hate to be on juries,

Professor Maitland has rendered yet another serand if you ever get chosen to try such a wretched vice to the history of English law by his Rede leccreature don't you dare stay. I wouldn't live with ture delivered at Cambridge in the summer and now you for a minute if you had to be known as the published, with elaborate notes, under the title of peer of a murderer. But it seems the worst kind

English Law and the Renaissance." At first the of foolishness to me that they had to go and call subject may sound remote from the interests of pracwitnesses to show that he was guilty when they tical people of to-day. But even a cursory perusal saw him do the shooting.”

will show that this is far from being the case, and *They had to prove the fact in court before he what the matter is one which is full of instruction could be sentenced.”

and warning for the ordinary lawyer and politician “Why did they have to prove it when he didn't and citizen of the twentieth century. The book is deny it?”

full of points, supported by a wealth of research col“Well, you see that was necessary in order that lected in the notes But we desire to concentrate our the jury could decide whether he was guilty or readers' attention on one point. not."

It is matter of common knowledge that in the six“Oh, fiddle on the old jury. Didn't he get up teenth century there was a widespread reception of himself, right in court, and say he was guilty?"

the Roman law in most continental countries. But “Yes, but the court couldn't accept such a plea. it will come as a startling revelation to many that in He had to plead not guilty."

the reign of Henry VIII it was seriously proposed “Why?”

formally to abolish the common law of England - a How could they go ahead and try a man who change which, if it had been carried, might have had was already known to be guilty ? ”

consequences as momentous as hose of the Reforma “Do you mean to tell me there was anybody in tion itself, and more important for lawyers. The that court-room who didn't know he was guilty formal proposal to substitute for the common law before the trial began?”

the Roman civil law did not, so far as appears, get Of course not. Everybody knew he was guilty.” | beyond the sphere of diplomatic negotiation between

But you just said they couldn't try him if they Cardinal Pole and a confidential representative of knew he was guilty."

the king. But this diplomatic dialogue throws a “Well, that's a legal formality.”

flood of light upon many measures which were actu“ But why didn't they want him to plead guilty?" ally taken and which were well calculated to pave the “ It was against the law for him to do that." way for such a result. It is interesting to note the

"Oh, it was, was it? So, if a person goes and reasons given by Pole for the change. The proceedshoots another, it's against the law for him to say ings, he complains, are conducted in a barbarous he did it, is it? What kind of laws have we in this tongue, the old French; there is no order or stability; country, anyway? If that's the way they work, the judgments in the Year Books are infinite, full of it's no wonder that we have anarchists. What's controversy, and of small authority; the judges are the use of having any laws at all, I'd like to know, not bound to follow them, and decide according to is

the arguments of the serjeants or of their own whim; “But you don't understand. If a man got up the statutes are too many; the result is delay in decisand pleaded guilty he would shut off the trial. They ions and uncertainty in law; primogeniture and encouldn't go on with the case if a plea were to be tail are barbarous. All this is capable of a simple accepted.”

remedy “if we might induce the heads of our counBut they asked him if he was guilty, didn't try to admit the same that is, to receive the civil they?"

law of the Romans, which is now the common law Yes."

of almost all Christian countries. Then the wisdom " And then, when he wanted to tell what he knew of some politic and wise persons could institute a few was the truth, they wouldn't let him. They made and better laws and ordinances as Justinian did.” In

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other words, Henry might become sole legislator as but a precedent for absolute monarchy and the supwell as absolute king, with Pole and a few others for pression of the common-law rights of individual his Tribonian, Theophilus and Dorotheus. And the freedom of person, speech and property. These argument is subtle. Real defects were to be made the were to be sacrificed to “ business” principles. ground of the abolition, but the object was one of Have we no similar dangers? And, if so, will the high policy — the policy of Rome of that day, to defects be remedied without the sacrifice of the rights encourage concentration of power with a view to and privileges " for which Hampden died on the the easier manipulation of it. This was the time field and Russell on the scaffold?” There are arwhen Henry was scheming for a divorce, and it rears in the courts, and the unwise clamor for the seems that the Pope might have had the English | abolition of appeals and a wider discretion of the common law abolished in return for the divorce. I judges, and would thus make law uncertain and unFor Henry, if we may judge from events, liked the stable. Inconvenient misuse is made of the right of advice and wept a long way in the direction of it, | meeting and speech, and the unwise are for withalthough he did not get the consideration, and used | drawing the right, or meeting it with lawless violence the suggestion against the authors of it. At any rate worthy of the Pretorian Guards; and cabinet ministhe Year Books were stopped, regius professors of ters openly approve, to the despair even of their own civil law were established in the universities, the Tribonian, Professor Dicey. Legal proceedings are Star chamber, the Court of Requests, and Courts of slow and uncertain and apt to check high-handed men Commission (all courts acting on the principles and in authority; so commissions and inquiries are substiprocedure of the civil rather than the common law) tuted for them, and put into the hands of those who were developed, and the king himself, under the will take instructions which could not yet be given statute of proclamation, obtained for a time some to the judges; and even judges are selected for their thing of the legislative power of a Justinian. Nor“ business capacity” and “knowledge of the world was this only the policy of King Henry, for in rather than for their love of the sacred rights and Mary's reign the real authors recovered the use of privileges which are committed to their custody. their invention and it was carried so far that the Freedom is inconvenient, so compulsory education, common-law courts had no work. In Michaelmas compulsory sanitation, compulsory registration, term, 1557, we read that men might have seen in et hoc genus omne, make the individual the slave Westminster Hall, at the King's Bench, not two men of the municipality, while compulsory debt makes of law before the justices; there was but one who the municipality the slave of the central government. looked about and had nothing to do, the judges look- Slipshod legislation is unintelligible to the people, as ing about them” (Stow). It is no wonder that the Archbishop of Canterbury proclaims upon the there was a violent reaction, and that the seventeenth housetops where Cardinal Pole only whispered in the century saw in revolution and bloodshed the triumph closet; and no remedy is devised, for the government of the common law under Coke and Selden and and parliament are absorbed in business. Ministers Prynne and Cromwell and William III. It is per- blunder, and there is a cry that the king should take haps to be regretted that it bore with it in its indis- | the government out of their hands. There is a tencriminate triumph not only its inestimable rights of dency to wage wars and annex territories for busiproperty and freedom of person and speech, but also ness purposes only, and to look upon treaties and connearly all its defects, except the barbarous Anglo-stitutions as so much rubbish to be cleared out. The French and some of the ancient tenures, defects theory of responsible government is made the cloak which have since required long and laborious efforts of a truly imperial irresponsibility: “Who are we of reform.

that we should stem the tide? ” says the prime minBut the story is written for our edification. Henry ister himself. could not so far have acted on Pole's advice without Truly there are dangers. Men like Lord Brama widespread dissatisfaction with the state of affairs well may be called pedantic in their devotion to libin the common law courts. Like ours, the age of erty; but if the traditional reverence for it dies on the Tudors was an age of commercial expansion and the judicial bench, and in the legal profession, where international jealousies, and“ business” was rampant shall it be found ? It cannot be denied that the last and intolerant. Commercial affairs would not have quarter of a century has seen greater inroads upon here been handed over to the Courts of Admiralty the liberties regained in the seventeenth century than and Chancery but for the persistent refusal of the any other equal period since, although there has been common-law courts to recognize the law merchants a simultaneous profession of belief in liberty. But and the persistent dishonesty of English juries in the two things are different; liberty to vote is not refusing verdicts in favor of foreigners. The Court liberty to act and speak, though all democracies tend of Requests would not have found favor with Som- to confuse them. And we are tending in all direcerset, no less than with Wolsey, but for the ex- tions to a reception of Roman methods. All honor, pense, delays and narrow feudal prejudices of the then, to a member of the profession, even if it be the ordinary procedure. And these real grievances voice of a professor crying in the wilderness of a played into the hands of those who saw in the Ro- university, who recalls us to reverence for the comman civil law not only a remedy for these grievances, mon law, to its perils in the sixteenth century and its

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