In the latter case, the "power" of the congress to levy a tax upon imports from Porto Rico, is the issue involved.

In the former, the question is: Must the executive department after treaty, and before specific direction by act of congress, continue to collect the duties which were in force when the treaty was made? In other words, did the mere fact that the treaty transferred the sovereignty of Porto Rico to the United States, abrogate the Dingley tariff act as to that island? Or, did that act continue in force as to Porto Rico until repealed or modified by a specific act of congress?

Since an act of congress authorized the duties to be collected from Porto Rico must not another act

No one has a deeper reverence for our written Charta Maxima. But I cannot look upon it blindly as a "fetich" to be worshipped as the sole source of our national power. Fortunately, the power of the Supreme Court to decide any question properly before it is absolutely uncontrolled by any prior decisions. Reluctant though it be to reverse any of its well-considered decisions, it has several times done so; and there can be no doubt that if it should believe that a new departure in constitutional construction is proper in these causes, no servitude to precedents will hamper its independent action. So that, if need be, in considering what may have been said by this court in respect to "delegated powers," the present court can, and doubtless will, discharge its solemn

former act?

The contentions of counsel for the United States (with which I agree) are that: In the De Lima case the executive had no right to refrain from collecting the duties under the Dingley act, until that act was repealed or modified by the congress. That a treaty, made by the executive and senate, could not defeat or suspend the Dingley act which was a law made by vote of the congresshouse and senate- and approved by the president.

In the Downes case the Foraker act provided for a special tariff, etc., under the clause of the Constitution which authorized the congress to dispose of " and govern territories. The power "to dispose of" is so vast as to include all lesser powers, and cannot be limited by a clause which would destroy that power if literally enforced. The clause requiring duties to be "uniform" throughout the "United States," was made to preclude any preference of the ports of one "State," over those of any other State," and had no application to the ports of any "territory."

The control of "territory," whether organized, unorganized, or only an appurtenant possession, rests solely with the congress, which is absolute, being subordinate only to the "institutional rights" reenumerated in the Constitution.

These observations are in the nature of an attempt to support the position of the United States government in the Porto Rico cases, by brief reasoning upon historical and legal principles, without invoking judicial precedents. Those precedents will be ably considered by the counsel of record in these

cases.

And this is done in the belief that the time has come, when, in the order of constitutional evolution, the Supreme Court has at once the occasion and the power, as never before, to assert, and interpret the written and unwritten Constitution as jointly establishing the modus vivendi of a nation, rather than as a rigid fundamental law insusceptible of whatever sound and fair interpretation may be essential to advance its two chief purposes, the perpetuity of the

ence of judgment required by this great occasion.

Counsel for appellants, at page 7 of their brief, make five "concessions" that go no little way toward admitting the position which I am about to suggest. But these concessions are as to legal principles, and their substance requires to be acted upon by the court as clearly and positively as if no such concessions had been made by one of the parties.

The basic error of appellants consists in holding, substantially, that all governmental powers of the "United States" come from, and rest upon the written Constitution of 1787; and that no national and international powers of that entity existed be

fore that instrument was ratified: That there is not any unwritten Constitution of the United States.

This error is of wide acceptance; has much to support it in past decisions of various courts, debates and text-books. In opposition thereto, these observations are submitted with great respect, and not without, I trust, a becoming diffidence, and

modest confidence.

My position is, that both by our unwritten and written Constitutions, the entity styled "the United States," is a "Nation," with all the powers of national sovereignty that are inherent in nationality; and that such nation has lawfully acquired title to the islands; that they are to be governed by the executive as commander-in-chief of the army and navy, until the congress shall prescribe their exact status and mode of government.

Let me speak of the pre-constitutional powers, under what I call the "unwritten Constitution." I shall then show that all these powers were reenumerated and expressly re-conferred by the written Constitution of 1787.

From the first colonial congress of 1774, until the Articles of Confederation took effect in 1781, the government of the United Colonies was purely a congressional or parliamentary government. The colonies were directly governed by England, until the Declaration of Independence of July 4, 1776, for the first time, declared them to be independent States." The "Union" began with the first congress, and it was expressly asserted as the "United

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States by the mmortal Declaration. And it was not until after that momentous instrument, that the several colonies assumed to be, and actually were organized "States." The "Union" therefore existed before there were any "States." And it is to the de facto existence of that "Union" that the States as "States" owe their existence. This was the view asserted in Lincoln's first inaugural address; and is supported by historical facts of the period involved. From 1774 to 1776 there was a de facto government opposed to the de jure government of England, and it consisted in the congress of the United Colonies. After 1776 there was the de facto government of the States - United, further defined by the Articles of Confederation of 1781. The treaty with England of 1783 and the written Constitution of 1787 culminated in the de facto and de jure United States as they exist to-day.

The chief national and international powers of a nation are those of war, treaty making, the control of commerce, post roads, fisheries, navigation, etc.; all of these powers were exercised by the Colonies United and the quasi States United before any State" was organized.

None of them was exercised by or conferred upon the colonies or the States; and the written Constitution of 1787 expressly forbade them to any and all "States." As they are essential to every independent nation, they must reside in the Union, and in the Union only. The existence of these powers necessarily implies all other powers needed to carry them into effective results, including plenary power to govern territory acquired by war or treaty.

Evolution, which has been at work ever since the first continental congress of 1774, has at last evolved the complete notion that the people of the United States constitute a nation, with all the powers of sovereignty that international law declares to be inherent in a sovereign nationality. There remained only the need of a declaration of this political truth by the only competent authority, the people themselves. This new Declaration of Independence was given by the people at the late presidential election. It, therefore, seems opportune for the Supreme Court to give judicial sanction to the political declaration of the people.

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The jealousy which the several States had for each other and their fear of the federal entity, styled The United States," were the chief obstacles in the way of adopting the written Constitution. That fear and jealousy sought to minimize federal power and vainly tried to emasculate it with more or less vague limitations.

Among the many acts of the States in early opposition to nationality I refer to the following-judicially known to the court.

The Virginia and Kentucky resolutions of 1798 and 1799 vehemently asserted the right of the States to judge of violations of the written Constitution and to resist them.

Josiah Quincy, of Massachusetts, declared that to erect Orleans (a part of the recent Louisiana pur

chase) into a State would be a virtual dissolution of the bonds of the Union.

New England violently opposed the 1812 war with England. Massachusetts particularly objected to the power of the president to call out the militia. Virginia went so far as to recall her militia from the federal service.

The Hartford convention bitterly opposed the power of the United States to call out the militia. This action of Massachusetts and Connecticut, in time of actual war with a toreign enemy, showed how slight a hold "nationality" had upon those, who, as citizens of 'States," were eaten up with jealousy of the federal or national government.

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The war debts of the States due to the United States were never promptly, or, indeed, fully paid. Debts against States could not be enforced, although they were suable under the original written Constitution of 1787. Many States bitterly opposed that provision. From this cause came the eleventh amendment, declaring that the judicial power of the United States should not extend to suits by citizens against a State. This was the first attempt at narrowing the federal power by an amendment.

The courts and militia of Pennsylvania resisted service of a mandamus from this court in the Olmstead case.

In Ohio opposition to the United States was vindictive to the extreme. The Virginia and Kentucky resolutions were affirmed; and, in 1820, the United States Bank was actually outlawed and made open to public robbery.

In 1832 South Carolina passed its act to nullify the federal protective tariff.

In one case Georgia hanged an Indian in despite of a writ of error to the Supreme Court.

In another case Georgia detained one Winchester eighteen months in jail after the court had pronounced his sentence illegal.

In Wisconsin controversy over the fugitive slave law caused a convention to adopt resolutions much like those of Virginia in 1789.

In 1861 this feeling of anti-nationality culminated in secession and the civil war.

The beneficient result of these acts is-the complete and assured permanency of the notion that the United States are a "nation," endowed with perpetuity and embracing in its entity all the powers needed for national and international purposes; and that whatever great powers of domestic or municipal sovereignty reside in the several States, the "States " are absolutely denuded of all national and international power.

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The supreme arbitrament of the sword" settled this question; it has become a great "political truth," with which no judicial body can have any right to interfere.

In the greater proportion of litigations the unwritten law has as much power as that which is written; and so it is true that no just view can be taken of a grave constitutional question which does not embrace the powers, both of the unwritten and

existed the ratification of the written Constitution. So that, as to all national or international powers, the United States, as a nation, has paramount power and is the sole sovereign.

In the domain of that great unwritten code called international law, the nation having sovereignty in a particular country has plenary power to prescribe the laws for its government.

The tenth amendment declaring that the powers not delegated to the United States were reserved to the States and the people, seems, at first, to narrow the scope of the federal powers; but a deeper view of the paramount authority that necessarily inheres in a nation to maintain its own perpetuity and the general welfare of its people, requires this amendment to be so construed as not to be in derogation of any of the national or international powers possessed and exercised during the pre-constitutional period when only the unwritten Constitution was in force.

From dissociated colonies, under crown govern

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ment, to the United Colonies combined against the crown, was one long step towards the union of the American people. Congressional government, the Declaration of Independence, the Articles of Confederation, the Constitution of 1787 and its more perfect Union," the great decisions of Marshall and of other members of the Supreme Court, the wager and verdict of the civil war, are steps in that orderly and mighty evolution, which, at length, has firmly crystallized into the fixed thought of complete natio..ality.

And that the tariff act has no application to goods imported from Porto Rico.

All the States are foreign to and independent of each other. New York, in respect to Pennsylvania, is a foreign country.

Each State, in respect to its own well-defined sovereignty, is foreign to the United States. And so Porto Rico is foreign to the United States, except in so far as the recent Porto Rico bill has made it, in certain enumerated respects, partially integral. But that bill, being passed subsequent to the circumstances of the De Lima case, is not therein under consideration. It is, however, in the Downes case.

If my view be correct, the United States, as a sovereign nation, acquired complete sovereignty over Porto Rico by virtue of conquest confirmed by treaty. This was done by virtue of "nationality" and under international law. It could have been as well and rightfully done, if there had never been any written Constitution. Before that instrument the "United

States," as a nation, waged successful war and ratified treaties. The express power to do this was (needlessly) reaffirmed under the war and treaty powers of the written Constitution.

The United States became a Union of "States," not of territories, when nationality was asserted July 4, 1776-when there were no "territories." The dominant intent was to unite the thirteen "States" into a federal "Union."

"The people of the United States have a written Constitution, interwoven with an elder one that. though unwritten, is of equal vigor; they must be construed together on the lines of sound judicial construction; so construed, the United States form a body politic, having all national and international powers that are needful to carry out the great purposes for which they were ordained- the perpetuity of the Union and the welfare of the people.

'Among such powers are those which suffice to justify territorial expansion and congressional government until such territory shall be admitted into the Union of States."

or to govern it.

The Articles of Confederation taking effect in 1781, made no reference to "territory," for the United States had no "territory" until the State of Virginia, in 1784, ceded its Northwest territory to the United States. The Union and the Constitution, written and unwritten, was made for "States" and not for "territories.". Whenever "territory" came within the ownership and sovereignty of the United States, it remained "territory" utterly outside of "Statehood," and all of the privileges pertaining exclusively to Statehood, until such territory should, under proper circumstances, be duly admitted by the congress into the Union as a full-fledged State. Until so admitted no territory has any of the rights that pertain to a 'State," as distinguished from a territory.

There are many such rights. The right to senators, to voting representatives and the right to be regarded as a State having self-governing, domestic or municipal sovereignty. Also the right to nondiscrimination in favor of any other State in respect to duties, imposts and excises. None of these rights belong to mere territories."

The constitutional clause in question was intended to protect "States" against such discrimination. The words of the clause are "throughout the United States."

The words "and territories" would have been

The only territory then known of and in contemplation was that ceded by the States to the Union, and all was so far removed from the seas as to be unthought of in connection with tariff duties.

The contention of appellants that Porto Rico or any mere "territory" is an integral part of the United States within the meaning of the tariff clause or in any other meaning goes too far.

If Porto Rico or other territory be an integral part of the Union, with the rights that that Union concedes to States and Statehood, what possible need can there be to apply for admission to the Union? Nothing is constitutionally clearer than the need of formal action by the congress before a territory can be admitted to the Union - and that act of admission is essential to the bestowal of the rights, privileges and immunities of the perfect status of Statehood. Until such an act as made by congress those who reside in territories lack that complete and dual citizenship of a State and of the United States which alone gives to one all the rights under the Constitution. Until that status is attained the residents of an unorganized territory (like Porto Rico at the date involved in this cause) are more accurately described "citizens."

as "subjects" than

as

To the United States they are subject: they owe allegiance, and protection is their due; but neither their allegiance, nor their protection, nor their privilege is the same as that of one who, as a resident of a "State," is a full-fledged citizen of both State and Union.

Every territory we have had has long been kept in a state of pupilage until the congress, upon full argument and investigation, has seen the wisdom of admitting it into the full partnership of the Union — and perfect American citizenship.

an affirmation of the judgments below.

Those precedents were made under the written Constitution of 1787; with equal reasonableness they might have been made, even if that great instrument had never been drawn.

Construing together as one, the written Constitution of 1787 and that great body of precedent, custom, acts, international law and inherent necessity, which reaches at least as far back as Magna Charta, and which I hold to be a very real unwritten Constitution,- I see no room to doubt the existence of the amplest power of nationality entirely adequate to all the needs of the United States as a body politic, possessed of the entire and complete sovereignty in all national and international matters. Nothing but the clearest possible written prohibition of the right to acquire and govern distant territory could exclude the powers I have ascribed to the United States. There is no such prohibition.

Not in our day has any cause of equal gravity been before our Supreme Court. It will be a distinct misfortune if the court should be other than unanimous in its decision to uphold the nationality of the Union to every extent needful for the maintenance of the welfare and perpetuity of the States United. That principle and precedent unite in pointing to such a decision, I do not doubt.

Does not this case emphasize the desirability of ending the modern practice of reading dissenting opinions?

In point of fact, is not every minority opinion in dissent from the majority decision a serious wound to the authority of the court?

Is it not lese majeste in respect to the supreme judicial power of the land?

JOSEPH CULBERTSON CLAYTON. 90 W. BROADWAY, N. Y.. December 15, 1900. June 3, 1901.

I hope that tne De Lima case may be reargued. The majority (I feel) clearly erred in directing

For the general welfare and for the perpetuity of the Union it is essential that whenever, under the war or treaty powers, we acquire new territory, first the executive and then the congress should govern, until in the fullness of time Statehood is conferred. Until then, or until authorized by act of congress such territory is a foreign country, as to tariff, and is in many other respects not an integral part of the Union.

These observations, based upon principles, are made to emphasize the long line of adduced judicial, executive and legislative precedents, none of which

and the Foraker act should be returned.

Surely, the incident of making the treaty could neither suspend nor abrogate the Dingley act abrogation or suspension could come only from the same power that made the act—“the congress," and presidential approval. Why should not the executive enforce the act until otherwise directed by congress or the Supreme Court?

Where is it held that a treaty is a law superior to a law made by congress?