Insular Cases in 1901. Indeed, prior to that time, there had been a number of decisions by the Supreme Court which indicated that such a distinction did not, and could not, exist according to the Constitutional Law of the United States. There were, however, on the other hand, not a few legislative and administrative precedents which supported such a doctrine; and by rigorously confining the contrary decisions of the Supreme Court to the facts of the cases in which they were rendered, it was found possible to escape from their control, and to hold that the term "United States," as used in at least some of the clauses of the Constitution, does not, and was not intended to, include all districts subject to the sovereignty of the United States; and that as to such areas not within the limits of the "United States," in this strict constitutional sense, Congress, in the exercise of its legislative powers, is not subject to the limitations which rest upon it when dealing with Territories which are included in the United States.

A review of the decisions of the Supreme Court rendered prior to the Insular Cases, shows that, from the first, the doctrine was held by the court that Congress when legislating upon the civil rights of inhabitants of the Territories is governed by all those express and implied limitations which rest upon it when dealing with the same subjects within the States.2 The only departures from this doctrine, if departures they be, were: (1) The remark thrown out by Justice Bradley in the Mormon Church case that "Doubtless Congress, in legislating for the Territories would be subject to those fundamental limitations in favor of personal rights which are formulated in the Constitution and its

2 See Loughborough v. Blake, 5 Wh. 317; 5 L. ed. 98; Am. Ins. Co. v. Canter, 1 Pet. 511; 7 L. ed. 242; Webster v. Reid, 11 How. 437; 13 L. ed. 761; Scott v. Sandford, 19 How. 393; 15 L. ed. 691; Reynolds v. U. S., 98 U. S. 145; 25 L. ed. 244; Nat. Bank v. Yankton, 101 U. S. 129; 25 L. ed. 1046; Murphy v. Ramsay, 114 U. S. 15; 5 Sup. Ct. Rep. 747; 29 L. ed. 47; Callan v. Wilson, 127 U. S. 540; 8 Sup. Ct. Rep. 1301; 32 L. ed. 223; Mormon Church v. U. S., 136 U. S. 1; 10 Sup. Ct. Rep. 792; 34 L. ed. 478; Am. Pub. Co. v. Fisher, 166 U. S. 464; 17 Sup. Ct. Rep. 618; 41 L. ed. 1079; Springville v. Thomas, 166 U. S. 707; 17 Sup. Ct. Rep. 717; 41 L. ed. 1172; Thompson v. Utah, 170 U. S. 343; 18 Sup. Ct. Rep. 620; 42 L. ed. 1061.

3 136 U. S. 1; 10 Sup. Ct. Rep. 792; 34 L. ed. 478.

amendments; but these limitations would exist rather by inference and the general spirit of the Constitution, from which Congress derives all its powers, than by any express and distinct application of its provisions;" and (2) the quotation of this observation by Justice Brewer in American Publishing Co. v. Fisher and the statement that "whether the Seventh Amendment of the Constitution of the United States operates ex proprio vigore to invalidate this territorial statute may be a matter of dispute." 5

Opposed, however, to this great weight of judicial opinion, there had been from the beginning, as has been said, a line of administrative and legislative precedents which tended to show a prevailing opinion that the Constitution with its limiting clauses does not immediately extend, ex proprio vigore, over all annexed territories, but over only such as have been expressly brought within its sphere of application by being "incorporated" in the Union. And, based upon the fact that this incorporation had certainly taken place with reference to the Territories concerned in the various Supreme Court decisions rendered prior to the Insular Cases, an argument was furnished for holding them not controlling in the Insular Cases which were concerned with districts that had not been so incorporated. These legislative and administrative precedents it does not fall within the province of this treatise to review. It is sufficient to say that in not a few instances various of the constitutional limitations were not applied in practice in the Territories, and that by specific legislative provisions these limitations were, from time to time, extended over the several Territories acquired by the United States, thus indicating on the part of Congress at least a doubt as to whether the constitutional provisions extended ex proprio vigore over the Territories.

Finally, it is to be observed, that, in the Constitution itself, there occur expressions which furnish possible ground for holding

4 166 U. S. 464; 17 Sup. Ct. Rep. 618; 41 L. ed. 1079.

5 The case of In re Ross (140 U. S. 453; 11 Sup. Ct. Rep. 897; 35 L ed. 581), properly construed, did not indicate a departure from the rule.

that some at least of its limitations were not intended to operate over all Territories that might come under the jurisdiction of, but remain merely appurtenant to, the United States. Thus the Thirteenth Amendment declares that slavery and involuntary servitude shall not exist "within the United States, or any place subject to their jurisdiction." Thus is plainly indicated the possibility that there may be districts subject to but not within the United States. And this point is emphasized when it is remembered that this Amendment was drafted and adopted by substantially the same men who drafted and adopted the Fourteenth and Fifteenth Amendments in which this qualifying phrase does not appear. Again, the Sixth Amendment provides that in criminal trials the accused shall be tried by an impartial jury of the State and district wherein the crime shall have been committed." 6

6 In United States v. Dawson (15 How. 467; 14 L. ed. 775), the opinion declares: "But it will be seen from the words of this amendment that it applies only to the case of offenses committed within the limits of a State.

The language of the Amendment is too particular and specific to leave any doubt about it." In Cook v. United States (138 U. S. 157; 11 Sup. Ct. Rep. 268; 34 L. ed. 906), the court say: "That amendment has reference only to offenses against the United States committed within a State" (citing United States v. Dawson). Yet, as we have seen in Reynolds v. United States (98 U. S. 145; 25 L. ed. 244), the court declared specifically that the Amendment was applicable to the Territory of Utah.

CHAPTER XXX.

THE INSULAR CASES.

§ 177. Downes v. Bidwell.

As a result of the Spanish-American War the United States came into possession of territories over which, because of their location, their economic and industrial status, and especially the character of their populations, it was deemed expedient to give to the Executive or to Congress the freest possible discretion with reference not only to the manner in which they should be governed, but to the civil rights that should be granted their inhabitants. The question whether in dealing with these new insular possessions, Congress should be held subject to all those constitutional limitations which apply when dealing with civil rights in the States or in the then existing Territories, thus became a most important one.

The form in which this question arose for judicial determina. tion was as to the constitutionality of that clause of the Foraker Act establishing civil "congressional" government in Porto Rico, which provided a scale of customs duties to be paid upon goods brought into the ports of the United States from the island. This necessarily involved an answer to the question whether the provision of the Constitution that "all duties, imposts and excises shall be uniform throughout the United States" applied ex proprio vigore to Porto Rico, or whether, having never been formally "incorporated" by Congress into the United States either expressly or by implication, the island was not a part of the "United States" within the meaning of the term as used in the constitutional clause just quoted.

In Downes v. Bidwell1 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, it did not, when looked at 1182 U. S. 244; 21 Sup. Ct. Rep. 770; 45 L. ed. 1088.

from the viewpoint of its own public law, become a part of the "United States " as that term is used in the Constitution.

Four of these five justices were able to reach this conclusion: First, by making a sharp distinction between "incorporated” and unincorporated" Territories; Second, by holding that the treaty-making power though able to annex Territories to the United States, that is, bring them under its sovereignty internationally speaking, is not competent to incorporate such areas in the United States, but that for this purpose the express or implied consent of Congress is necessary; and Third, that Congress in legislating for unincorporated Territories is not subject to many of the limitations which apply when it is legislating for the States and incorporated Territories.

It will be observed that so far as the general limitations upon the legislative powers of Congress are concerned, these four justices place the States and the incorporated Territories in the same class. Only the unincorporated Territories are by them excluded from the protection of such limitations as, for example, that federal tax laws shall be uniform throughout the United States. The fifth justice, Brown, who concurred with these four, does not, as we shall see, make any distinction between incorporated and unincorporated Territories, but excludes them all from the term "United States," and from the protection of all but the most fundamental of the constitutional limitations upon the power of Congress. The constitutional rights which these limitations create, he asserts, do not belong to the citizens of any Territories until by act of Congress they have been extended to them. Thus, while the four justices divide the domains of the United States into the three classes of States, Incorporated Territories, and Unincorporated Territories; Justice Brown recognizes only two categories, States and Territories.

The reasoning of the four justices was as follows: At the beginning very proper care is taken to point out that the ques

2 These were the same justices who dissented from the judgment of the court in De Lima v. Bidwell that by the treaty of annexation Porto Rico at once ceased to be "foreign territory" within the meaning of the federal tariff laws.