expected from his position in Downes v. Bidwell, held that the general applicability of the Constitution depended not upon the fact of incorporation, but upon whether Congress had by some expression of its will clearly shown that it intended that the particular provision of the Constitution should apply.

Justice Harlan in a concurring opinion again stated his doctrine that the Constitution in all its provisions extends ex proprio vigore over all Territories immediately upon annexation to the United States. I cannot agree," he said, "that the supremacy of the Constitution depends upon the will of Congress."

§ 184. Other Insular Cases.

In Binns v. United States" it was held with reference to license fees imposed on certain kinds of luxuries, that, though Alaska was an incorporated Territory and, therefore, within the scope of the provision of the Constitution that excises shall be uniform throughout the United States, the tax in question was valid as an act passed by Congress acting as a local legislature, and not as a general legislature exercising a power under the clause's empowering it to levy and collect taxes to pay the debts and provide for the common defense and general welfare of the United States.

In Kepner v. United States, 19 decided in 1904, it was held that by an act of Congress of 1902, the immunity from double jeopardy for crime as provided in the Constitution had been extended to the Philippines. The point urged by the United States in this case that the question as to what constitutes double jeopardy should be settled according to the local Spanish civil law, will be considered in another chapter of this work in which the Constitutional provision regarding immunity from a second jeopardy for the same criminal offense will be specially considered.20

17 194 U. S. 486; 24 Sup. Ct. Rep. 816; 48 L. ed. 1087.

18 Art. 1, Sec. VIII, Cl. 1.

19 195 U. S. 100; 24 Sup. Ct. Rep. 797; 49 L. ed. 114.

20 See section 423.

7

In Goetze v. United States and Crossman v. United States21 the doctrine of De Lima v. Bidewell was followed with reference to taxes levied on goods imported into the United States from Porto Rico after the taking effect of the Foraker Act establishing civil government in that island.

In the so-called second Dooley case22 it was held that the tax collected under the Foraker Act on goods imported. into Porto Rico from the United States was not a tax on goods exported from a State and, therefore, forbidden by the Constitution. The tax in question, it was held, was in essential character rather a local Porto Rican tax upon goods coming into that country, than an export tax on goods leaving the United States. As Justice Brown in his opinion said: "There can be no doubt whatever that if the legislative assembly of Porto Rico should, with the consent of Congress, lay a tax upon goods arriving from ports of the United States, such tax, if legally imposed, would be a duty upon imports to Porto Rico, and not upon exports from the United States; and we think the same result must follow if the duty be laid by Congress in the interest and for the benefit of Porto Rico. The truth is that, in imposing the duty as a temporary expedient, with a proviso that it may be abolished by the legislative assembly of Porto Rico, at its will, Congress thereby shows that it is undertaking to legislate for the island for the time being and only until the local government is put into operation. The mere fact that the duty passes through the hands of the revenue officers of the United States is immaterial, in view of the requirement that it shall not be covered into the general fund of the Treasury, but be held as a separate fund for the government and benefit of Porto Rico. . . . It is not intended by this opinion to intimate that Congress may lay an export tax upon merchandise carried from one State to another. While this does not seem to be forbidden by the express words of the Constitution, it would be extremely difficult, if not impossible, to lay such a tax without a violation of the first paragraph of Art. 1,

21 182 U. S. 221; 21 Sup. Ct. Rep. 742; 45 L. ed. 1065.

22 Dooley v. United States, 183 U. S. 151; 22 Sup. Ct. Rep. 62; 43 L. ed.

PRINCIPLES OF CONSTITUTIONAL, CONSTRUOTIC

441

Sec. 8, that all duties, imposts and excises shall be uniform throughout the United States.' There is a wide difference between the full and paramount power of Congress in legislating for a Territory in the condition of Porto Rico and its power with respect to States, which is merely incidental to its rights to regulate interstate commerce. The question, however, is not involved in this case, and we do not desire to express an opinion upon it."

In the concurring opinion read by Justice White, the decision is placed upon the ground that the constitutional provision applies only to goods exported to a country wholly "foreign" to the United States and not to a country appurtenant, as was Porto Rico, to the United States.

Four justices dissented holding that the prohibition operates, and was intended to operate, as a general limitation on the power to regulate commerce whether interstate or foreign. "And this," the dissenting opinion says, "is equally true in respect of commerce with the Territories, for the power to regulate commerce includes the power to regulate not only as between foreign countries and the Territories, but also by necessary implication as between the States and Territories. Stoutenburgh v. Hennick 129 U. S. 141; 9 Sup. Ct. Rep. 256; 32 L. ed. 637."

"The proposition that because the proceeds of these duties were to be used for the benefit of Porto Rico they might be regarded as if laid by Porto Rico itself with the consent of Congress, and were therefore lawful, will not bear examination. No money can be drawn from the Treasury except in consequence of appropriations made by law. This act does not appropriate a fixed sum for the benefit of Porto Rico, but provides that the money collected from the citizens of the United States, shall be placed in a separate fund or subsequently in the treasury of Porto Rico, to be expended for the government and benefit thereof. And although the destination of the proceeds in this way were lawful, it would not convert duties on articles exported from States into local taxes. States may, indeed, under the Constitution lay duties on foreign imports and exports for the use of the Treasury of the United States, with the consent of Congress, but

they do not derive the power from the General Government. The power pre-existed, and it is its exercise only that is subjected to the discretion of Congress. Congress may lay local taxes in the Territories, affecting persons and property therein, or authorize territorial legislatures to do so, but it cannot lay tariff duties on articles exported from one State to another, or from any State to the Territories, or from any State to foreign countries, or grant a power in that regard which it does not possess. But the decision now made recognizes such powers in Congress, as will enable it, under the guise of taxation, to exclude the products of Porto Rico from the States as well as the products of the States from Porto Rico; and this notwithstanding it was held in De Lima v. Bidwell (182 U. S. 1; 21 Sup. Ct. Rep. 743; 45 L. ed. 1041) after the ratification of the treaty with Spain ceased to be foreign and became domestic territory.

" 23

In Lincoln v. United States, and Warner, Barnes & Co. v. United States24 it was held that the existence of an avowed insurrection of the natives in the Philippine Islands after the ratification of the treaty of peace with Spain did not justify the exaction under a military order of duties on imports from the United States into Manila after that date. The Diamond Rings case was held to govern.

That the Thirteenth Amendment forbidding slavery and invol untary servitude except as punishment for crime is of application in the unincorporated as well as in the incorporated Territories, is clear, its language expressly extending its force not only to the United States but to "any place subject to their jurisdiction."

Certain forms of slavery do, however, undoubtedly exist in some of the Philippine Islands, but there is of course no legality in this, and as soon as is possible, the custom or practice will be suppressed.

23 This case will be again considered in Chapter XLI in connection with the discussion of the taxing powers of the United States.

24 197 U. S. 419; 25 Sup. Ct. Rep. 455; 49 L. ed. 816.

25 183 U. S. 176; 22 Sup. Ct. Rep. 59; 46 L. ed. 138.

CHAPTER XXXI.

CITIZENSHIP IN THE TERRITORIES.

§ 185. Effect of Cession of Territory on Citizenship of Inhabit

ants.

Whether or not inhabitants of territories ceded by one nation to another necessarily have, according to the principles of International Law, the option of becoming citizens of the annexing State, or retaining their old citizenship, is a point upon which International Law writers do not seem to be fully agreed. Rivier, for instance, in his recent work, "Principes du Droit des Gens," declares that they have not that unless expressly provided otherwise, they become, nolens volens, the subjects of the power to which their territory is united. Other text-book writers, Westlake and Halleck, for instance, claim that the treaty of cession being silent upon this point, an option exists.1 Halleck declares: "The transfer of territory establishes its inhabitants in such a position toward the new sovereignty that they may elect to become, or not to become, its subjects. Their obligations. to the former government are canceled, and they may, or may not, become the subjects of the new government, according to their own choice. If they remain in the territory after this transfer, they are deemed to have elected to become its subjects, and thus have consented to the transfer of their allegiance to the new sovereignty. If they leave, sine animo revertendi, they are deemed to have elected to continue aliens to the new sovereignty. The status of the inhabitants of the conquered and transferred territory is thus determined by their own acts. This rule is the most just, reasonable, and convenient which could be adopted.

1 This right of option as regards citizenship is not to be confounded with the right, by some alleged to exist, of the inhabitants to decide whether or not they will consent to a transfer of sovereignty over their territory to another power. Such a right has never been accepted by International Law writers, nor recognized by the United States in any of the annexations by it of new territories.