SUPREME COURT OF THE UNITED STATES. tue of the treaty, ceded conquered territory, or terri No. 158.- OCTOBER TERM, 1901. OPINION FILED DECEMBER 2, 1901. THE DIAMOND RINGS. In error to the District Court of the United States for the Northern District of Illinois. TARIFF LAWS — PHILIPPINE ISLANDS NOT been granted and delivered to the United States, by FOREIGN COUNTRY. Diamonds acquired by a soldier in the Philippine Islands after the ratification of the treaty between the United States and Spain, February 6, 1899, when brought by him to California, are not subject to duties imposed by the act of 1897, on "articles imported from foreign countries." their former master, were no longer under the sovereignty of any foreign nation. In Cross v. Harrison (16 How. 164) the question was whether goods imported from a foreign country into California after the cession were subject to our tariff laws, and this court held that they were. In De Lima v. Bidwell the question was whether the goods imported into New York from Porto Rico, after the cession, were subject to duties imposed by Mr. Chief Justice FULLER delivered the 'opinion the act of 1897 on "articles imported from foreign of the court. countries," and this court held that they were not. That act regulated commerce with foreign nations, and Porto Rico had ceased to be within that category, nor could territory be foreign and domestic at the same time. Emil J. Pepke, a citizen of the United States and of the State of North Dakota, enlisted in the First Regiment of the North Dakota United States Volunteer Infantry, and was assigned for duty with his regiment in the Island of Luzon, in the Philippine Islands, and continued in the military service of the United States until the regiment was ordered to return, and on arriving at San Francisco, was dis-it within the customs union, presupposes that a councharged September 25, 1899. He brought with him from Luzon fourteen diamond rings, which he had there purchased, or acquired through a loan, subsequent to the ratification of the treaty of peace between the United States and Spain, February 6, 1899, and the proclamation thereof by the president of the United States April 11, 1899. In May, 1900, in Chicago, these rings were seized by a customs officer as having been imported contrary to law, without entry, or declaration, or payment of duties, and an information was filed to enforce the forfeiture thereof. To this Pepke filed a plea setting up the facts, and claiming that the rings were not subject to customs duties; the plea was held insufficient; forfeiture and sale were decreed, and this writ of error was prosecuted. The tariff act of July 24, 1897 (30 Stat. 151), in regulation of commerce with foreign nations, levied duties "upon all articles imported from foreign countries." Were these rings, acquired by this soldier after the ratification of the treaty was proclaimed, when brought by him from Luzon to California, on his return with his regiment to be discharged, imported from a foreign country? This question has already been answered in the negative, in respect of Porto Rico, in De Lima v. Bidwell (182 U. S. 1), and unless the cases can be distinguished, which we are of opinion they can not be in this particular, that decision is controlling. The Philippines, like Porto Rico, became, by vir Among other things it was there said: "The theory that a country remains foreign with respect to the tariff laws until congress has acted by embracing try may be domestic for one purpose and foreign for another. It may undoubtedly become necessary for the adequate administration of a domestic territory to pass a special act providing the proper machinery and officers, as the president would have no authority, except under the war power, to administer it himself; but no act is necessary to make it domestic territory if once it has been ceded to the United States. * * * This theory also presupposes that territory may be held indefinitely by the United States; that it may be treated in every particular, except for tariff purposes, as domestic territory; that laws may be enacted and enforced by officers of the United States sent there for that purpose; that insurrections may be suppressed, wars carried on, revenues collected, taxes imposed; in short, that everything may be done which a government can do within its own boundaries, and yet that the territory may still remain a foreign country. That this state of things may continue for years, for a century even, but that until congress enacts otherwise, it still remains a foreign country. To hold that this can be done as matter of law we deem to be pure judicial legislation. We find no warrant for it in the Constitution or in the powers conferred upon this court. It is true the non-action of congress may occasion a temporary inconvenience; but it does not follow that courts of justice are authorized to remedy it by inverting the ordinary meaning of words." No reason is perceived for any different ruling as to the Philippines. By the third article of the treaty Spain ceded to the United States "the archipelago known as the Philippine Islands," and the United States agreed to pay to Spain the sum of twenty million dollars within three months. The treaty was ratified; congress appropriated the money; the ratification was proclaimed. The treaty-making power, the executive power, the legislative power, concurred in the completion of the transaction. The Philippines thereby ceased, in the language of the treaty, "to be Spanish." Ceasing to be Spanish. they ceased to be foreign country. They came under the complete and absolute sovereignty and dominion of the United States, and so became territory of the United States over which civil government could be established. The result was the same although there was no stipulation that the native inhabitants should be incorporated into the body politic, and none securing to them the right to choose their nationality. Their allegiance became due to the United States and they became entitled to its protection. But it is said that the case of the Philippines is to be distinguished from that of Porto Rico because on February 14, 1899, after the ratification of the treaty, the senate resolved, as given in the margin,* that it was not intended to incorporate the inhabitants of the Philippines into citizenship of the United States, nor to permanently annex those islands. or to place itself in the position of waging a war of conquest. The sovereignty of Spain over the Philippines and possession under claim of title had existed for a long series of years prior to the war with the United States. The fact that there were insurrections against her or that uncivilized tribes may have defied her will did not affect the validity of her title. She granted the islands to the United States, and the grantee in accepting them took nothing less than the whole grant. If those in insurrection against Spain continued in insurrection against the United States, the legal title and possession of the latter remained unaffected. We do not understand that it is claimed that in carrying on the pending hostilities the government is seeking to subjugate the people of a foreign country, but, on the contrary, that it is preserving order and suppressing insurrection in territory of the United States. It follows that the possession of the United States is adequate possession under legal title, and this cannot be asserted for one purpose and denied for another. We dismiss the suggested distinction as untenable. But it is sought to detract from the weight of the ruling in De Lima v. Bidwell because one of the five justices concurring in the judgment in that case concurred in the judgment in Downes v. Bidwell (182 U. S. 244). In De Lima v. Bidwell, Porto Rico was held not to be a foreign country after the cession, and that a prior act exclusively applicable to foreign countries became inapplicable. In Downes v. Bidwell, the conclusion of a majority of the court was that an act of congress levying We need not consider the force and effect of a resolution of this sort, if adopted by congress, not like that of April 20, 1898, in respect of Cuba, pre- | liminary to the declaration of war, but after title had passed by ratified cession. It is enough that this was a joint resolution; that it was adopted by the senate by a vote of 26 to 22, not two-thirds of a quorum; and that it is absolutely without legal significance on the question before us. The meaning of the treaty 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 indulged, it would seem to be that two-thirds of a quorum of the senate did not consent to the ratification on the grounds indicated. It is further contended that a distinction exists in that while complete possession of Porto Rico was taken by the United States, this was not so as to the Philippines, because of the armed resistance of the native inhabitants to a greater or less extent. We must decline to assume that the government wishes thus to disparage the title of the United States * "Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, That by the ratification of the treaty of peace with Spain it is not intended to incorporate the inhabitants of the Philippine Islands into citizenship of the United States, nor is it intended to permanently annex said islands as an integral part of the territory of the United States; but it is the intention of the United States to establish on said islands a government suitable to the wants and conditions of the inhabitants of said islands to prepare them for local self-government, and in due time time to make such disposition of said islands as will best promote the interests of the United States and the inhabitants of said islands." Cong. Rec., 55th Cong., 3d Sess., vol. 32, p. 1847. though not on the same grounds, in this conclusion. The justice who delivered the opinion in De Lima's case was one of the majority, and was of opinion that although by the cession Porto Rico ceased to be a foreign country, and became a territory of the United States and domestic, yet that it was merely "appurtenant" territory and "not a part of the United States within the revenue clauses of the Consti tution." This view placed the territory, though not foreign. outside of the restrictions applicable to interstate commerce, and treated the power of congress, when affirmatively exercised over a territory, situated as supposed, as uncontrolled by the provisions of the Constitution in respect of national taxation. The distinction was drawn between a special act in respect of the particular country, and a general and prior act only applicable to countries foreign to ours in every sense. The latter was obliged to conform to the rule of uniformity, which was wholly disregarded in the former. The ruling in the case of De Lima remained unaf fected, and controls that under consideration. And this is so notwithstanding four members of the majority in the De Lima case were of opinion that Porto Rico did not become by the cession subjected to the exercise of governmental powers in the levy of duties unrestricted by constitutional limitations. Decree reversed and cause remanded with directions to quash the information. PRISON REFORM. Superintendent Fuller, of the Michigan State Reformatory, read the following paper before the National Prison Association: I "America has made mighty strides in its material advancement during the past ten years. Is prison management keeping up with the procession? think that in most respects it is. I am sure that in one respect it is not. I refer now to the political brigandage which is still prevalent in a few States the bold, bad brigandage which ruthlessly seizes not only the prison, but all the other public institutions and holds them for political ransom. Honest, efficient, wise and humane prison management cannot reach its highest stage of development until the outraged taxpayers and the humanitarian take the ward heeler by the throat. The good citizen must stand between the State institution and the political plunderer. The good citizen must see that honesty, efficiency, intelligence, progress and faithfulness to duty have higher rewards from the people than mere ability to control delegations. To say that a free government cannot long endure when public honors are sold for cash is an observation on the case that savors much of common place, and all the world admits it. reform the professional labor reformers. It must awaken the judiciary. It must renovate the jails. And above and beyond all it must wipe out the pernicious fee system which gives the constable so many dollars for arresting a fellow-citizen, the justice of the peace so many dollars for convicting him and the sheriff so many cents a day for feeding 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 is supposed to own a heritage of life, liberty and the pursuit of happiness. The fee system was a cloud upon the nineteenth century. It is blot upon the fairer pages of the twentieth century. I believe the day is not far distant when every person engaged directly or indirectly in the administration of justice will be placed upon a salary basis and his financial reward for protecting the rights of the innocent will be as great as his reward for convicting the guilty. Then the shameful spectacle of constables, marshals and justices of the peace engaged like pawnbrokers or peanut venders in a scramble for business which may involve the sacred liberties of their fellowmen will be a thing of the past. "The judges must be awakened to a more intelligent discrimination between the first offenders, who can be reformed, and the professional criminal, who cannot be; and the probability of reform, rather than the nature of the offense, should govern the length of sentence. A balky, vicious, kicking mule may reform, but he seldom does. A midnight house burgular or safe blower who continues to follow his trade after one or two terms in prison may reform, but he seldom does, except in dime novels and the minds of optimistic philanthropists. I believe that a life sentence is the only intelligent treatment for this class of criminals, while the sentence of first offenders is frequently too long. Indeed, I am convinced that many first offenders can be better the probation system or suspension or sentence now in successful operation in several States. "But a public official who buys his nomination or election with his own money is less a menace to good 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 control. When he buys it with his own money he is merely a common briber. When he buys it with the promise of public patronage he seizes your property and my property with which to pay his political debts and adds grand larceny to bribery. "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 job. The stockholders would repudiate such a policy; and yet they see the great public institutions put up every two years as a prize in the political game and only murmur in their sleep. The successful prison or institution manager is not born such. He is made in the hard school of experience, just as the successful railroad manager is, and, if the people who foot the bills would reap the largest returns from their large investments, they must prevent the public institutions from being used as political footballs. "Prison reform must start further back than the prisons. It must educate the law-makers. It must "Labor is the first requisite of prison reform. Many get into prison because they have never learned to work; many more because they have never learned to do anything well enough to hold a job." WOMEN AND TRIAL BY JURY. "It seems queer to me," said Mrs. Pelton, "that they had to go through all this bother with that miserable Slozgopps, or whatever his name is. Why didn't they just hang him without so much fuss?" "My dear," Mr. Pelton explained, "it is evident that you don't understand the first principle of our glorious system of government. No man can be legally deprived of his life in this country without first having a trial before a jury of his peers." "What do you mean by a jury of his peers?" asked Mrs. Pelton, who possesses a virtue that too many people lack. When she don't understand “Oh, but this is merely theoretical," her husband was being followed ог not.- Chicago Recordreplied. Herald. LAW. "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 them in the same class with such a hateful, lowdown brute! No wonder men hate to be on juries, and if you ever get chosen to try such a wretched creature don't you dare stay. I wouldn't live with you for a minute if you had to be known as the peer of a murderer. But it seems the worst kind of foolishness to me that they had to go and call witnesses to show that he was guilty when they saw him do the shooting." Professor Maitland has rendered yet another service to the history of English law by his Rede lecture delivered at Cambridge in the summer and now published, with elaborate notes, under the title of English Law and the Renaissance." At first the subject may sound remote from the interests of practical people of to-day. But even a cursory perusal will show that this is far from being the case, and that the matter is one which is full of instruction 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?" They had to prove the fact in court before he could be sentenced." "Well, you see that was necessary in order that the jury could decide whether he was guilty or not." "Oh, fiddle on the old jury. Didn't he get up himself, right in court, and say he was guilty?" "Yes, but the court couldn't accept such a plea. He had to plead not guilty." "Why?" "How could they go ahead and try a man who was already known to be guilty?" "Do you mean to tell me there was anybody in that court-room who didn't know he was guilty before the trial began?" "Of course not. Everybody knew he was guilty." But you just said they couldn't try him if they knew he was guilty." "Well, that's a legal formality." "But why didn't they want him to plead guilty?" "It was against the law for him to do that." "Oh, it was, was it? So, if a person goes and shoots another, it's against the law for him to say he did it, is it? What kind of laws have we in this country, anyway? If that's the way they work, it's no wonder that we have anarchists. What's the use of having any laws at all, I'd like to know, is "But you don't understand. If a man got up and pleaded guilty he would shut off the trial. They couldn't go on with the case if a plea were to be accepted." full of points, supported by a wealth of research col| lected in the notes But we desire to concentrate our readers' attention on one point. It is matter of common knowledge that in the sixteenth century there was a widespread reception of the Roman law in most continental countries. But it will come as a startling revelation to many that in the reign of Henry VIII it was seriously proposed formally to abolish the common law of England — a change which, if it had been carried, might have had consequences as momentous as those of the Reforma tion itself, and more important for lawyers. The formal proposal to substitute for the common law the Roman civil law did not, so far as appears, get beyond the sphere of diplomatic negotiation between Cardinal Pole and a confidential representative of the king. But this diplomatic dialogue throws a flood of light upon many measures which were actually taken and which were well calculated to pave the way for such a result. It is interesting to note the reasons given by Pole for the change. The proceedings, he complains, are conducted in a barbarous tongue, the old French; there is no order or stability; the judgments in the Year Books are infinite, full of controversy, and of small authority; the judges are not bound to follow them, and decide according to the arguments of the serjeants or of their own whim; the statutes are too many; the result is delay in decisions and uncertainty in law; primogeniture and entail are barbarous. All this is capable of a simple remedy "if we might induce the heads of our coun But they asked him if he was guilty, didn't try to admit the same - that is, to receive the civil they?" "Yes." "And then, when he wanted to tell what he knew was the truth, they wouldn't let him. They made law of the Romans, which is now the common law of almost all Christian countries. Then the wisdom of some politic and wise persons could institute a few and better laws and ordinances as Justinian did." In but a precedent for absolute monarchy and the suppression of the common-law rights of individual freedom of person, speech and property. These were to be sacrificed to 'business" principles. other words, Henry might become sole legislator as well as absolute king, with Pole and a few others for his Tribonian, Theophilus and Dorotheus. And the argument is subtle. Real defects were to be made the 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. | 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 went 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 minister himself. But the story is written for our edification. Henry could not so far have acted on Pole's advice without a widespread dissatisfaction with the state of affairs in the common law courts. Like ours, the age of the Tudors was an age of commercial expansion and international jealousies, and "business" was rampant and intolerant. Commercial affairs would not have here been handed over to the Courts of Admiralty and Chancery but for the persistent refusal of the common-law courts to recognize the law merchant and the persistent dishonesty of English juries in refusing verdicts in favor of foreigners. The Court of Requests would not have found favor with Somerset, no less than with Wolsey, but for the expense, delays and narrow feudal prejudices of the ordinary procedure. And these real grievances played into the hands of those who saw in the Roman civil law not only a remedy for these grievances, | Truly there are dangers. Men like Lord Bramwell may be called pedantic in their devotion to liberty; but if the traditional reverence for it dies on the judicial bench, and in the legal profession, where shall it be found? It cannot be denied that the last quarter of a century has seen greater inroads upon the liberties regained in the seventeenth century than any other equal period since, although there has been a simultaneous profession of belief in liberty. But the two things are different; liberty to vote is not liberty to act and speak, though all democracies tend to confuse them. And we are tending in all directions to a reception of Roman methods. All honor, then, to a member of the profession, even if it be the voice of a professor crying in the wilderness of a university, who recalls us to reverence for the common law, to its perils in the sixteenth century and its |