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LIBERTY TRACTS NUMBER ELEVEN

The
Newly- Acquired Islands
and the
Constitution
Has the Congress of the United States the Constitutional
Power to Lay and Collect Export or Import Duties
on Commerce Passing Between the States and the
Territories Recently Acquired Under the Spanish Treaty?
By
Hon. John B. Henderson
Ex-Senator of the United States
from Missouri
An Address delivered at the Philadelphia Conference,
February 22, 1900

The people, it is true, act through representatives ; but no act of those
representatives can be performed outside of the Constitution. The
Constitution was made by the people as a check upon their representatives.
The people may amend the instrument; but, until changed by them in the
mode provided therein, that Constitution, with all its imitations, operates
upon and restrains every act of every department of the Government.

Chicago :
American Anti-Imperialist League
March, 1900

American
Anti-Imperialist League

Office of the Executive Committee
164 Dearborn Street, Room 517
CHICAGO

George S. Boutweli., President.
¦William J. Mize, Secretary. Frederick W. Gookin, Treasurer.
vice-presidents
Andrew Carnegie. Donelson Caffery. Richard T, Crane. Carl Schurz.
J. Sterling Morton. Rufus B. Smith. John J. "^'alentine.
FINANCE COMMITTEE
Daniel M. I.ord, Chairman, Chicago. Herbert 'Welsh, Philadelphia.
Dana Estes, Boston. I,ouis R. Ehrich, Colorado Springs.
Robert Fulton Cutting, New York, exe:cutive committee
Edwin Burritt Smith, Chairman.
President, Secretary, Treasurer, Ex-Offido.
Edgar A. Bancroft. IyOuis R. Ehrich. 'William H. Fleming.
¦William D. McHugh. George G. Mercer. Frank H. Scott. ¦Winslow 'Warren.
Charles B. "Wilby. Erving 'WinSlo'w. Sigmund Zeisler.

This League is organized to aid in holding the United States true to the
principles ofthe Declaration of Independence. It seeks the preservation of
the rights of the people as guaranteed to them by the Constitution. Its
members hold self-government to be fundamental, and good government
but incidental. It is its purpose to oppose by all proper means the extension
ofthe sovereignty ofthe United States over subject peoples. It 'will con
tribute to the defeat of any candidate or party that stands for the forcible
subjugation of any people.

CORRESPONDENCE IS SOLICITED.

THE NEWLY-ACQUIRED ISLANDS AND
THE constitution.

The federal Constitution authorizes Congress " to lay and
collect taxes, duties, imposts, and excises, to pay the debts and
provide for the common defence and general welfare of the
United States ; but all duties, imposts, and excises shall be
uniform throughout the United States." You will observe
that in the modifying clause requiring uniformity, the word
" taxes," is omitted. The reason for the omission is that uni
formity in respect of " taxes," as thus used in the Constitution,
is provided for and enjoined in other provisions of the instru
ment. For instance : " Representatives and direct taxes shall
,be apportioned among the several States * * according
to their respective numbers." And again, "no capitation or
other direct tax shall be laid, unless in proportion to the census
or enumeration herein directed to be taken." The first census
was ordered at the beginning of the Government, and sub
sequent enumerations are to follow every ten years thereafter.
It will be seen, therefore, that taxation by Congress, in all
its forms, must be uniform in its operation " throughout the
United States."
The first question in order, therefore, is this : Are the
Territories a part of the United States ? If so, it must be ad
mitted that the injunction of uniformity extends to them equally
as to the States themselves. These clauses of the Constitution
received clear and explicit interpretation by the Supreme Court
of the United States eighty years ago, in the case of L,ough-
borough V. Blake, 5 Wheaton.
Congress had levied a direct tax, and in its apportionment
the Territories and District of Columbia were included. This
was met with contention that the apportionment could only be

made "among the States which may be included within the
Union;" and that the District of Columbia and the Territories,
not being States, were not subject to the tax. The issue thus
presented necessarily involved a full definition of this power
of taxation, as well as the territorial limits within which the
power could be exercised.
•The following is an extract from unanimous opinion of the
Court, delivered by Chief Justice Marshall :
" The Sth section of the nrst article gives to Congress
the power to 'lay and collect taxes, duties, imposts, and
excises,' for the purposes thereinafter mentioned. This
grant is general, without limitation as to place. It con
sequently extends to all places over which the Govern
ment extends. If this could be doubted, the doubt is re
moved by the subsequent words which modify the grant.
These words are, 'but all duties, imposts, and excises shall
be uniform throughout the United States.' It -will not
"be contended that the modification of the power extends to
places to which the power itself does not extend. The
power, then, 'to lay and collect duties, imposts, and excises'
may be exercised, and must be exercised throughout the
United States. Does this term designate the whole, or
any particular portion, of the American empire ? Cer
tainly this question can admit of but one answer. It is
the name given to our great republic, which is composed
of States and Territories. The District of Columbia, or
the territory west of the Missouri, is not less within the
United States than Maryland or Pennsylvania, and it is
not less necessary, on the principles of our Constitution,,
that uniformity in the imposition of imposts, duties and
excises should be observed in the one than in the other.
Since, then, the power to lay and collect taxes, which
includes direct taxes, is obviously co-extensive with the
power to lay and collect duties, imposts, and excises, and
since the latter extends throughout the United States, it
follows that the power to impose direct taxes also extends
throughout the United States."
Near the close of the opinion in this case, the Court in
dulges in the pleasant refiection that, while the District of Col
umbia and the Territories were subject to the laws of taxation^
4

they were nevertheless protected from oppression by the con
stitutional guaranties of uniformity and equality of apportion
ment in the exercise of the power.
In the face of this construction of the Constitution, re
cognized and acted upon by all the departments of our Govern
ment from its origin down to the present time, it is now de
liberately proposed in Congress of the United States to place
our new Territories wholly outside of the Constitution, to
govern them with powers of absolute dominion, to hold and
treat them as alien provinces, and to subordinate their in
terests to the unlimited control of a government in which they
are not to be represented.
The claims for this new and extraordinary doctrine are
attributed to various sources of power. First, it is insisted that
the United States is a sovereign nation, and as such it must
necessarily possess all the attributes and powers of sover
eignty as known and exercised in other nations. It may
be admitted that absolute sovereignty rests with the
people of the United States ; but, as an American, I am
proud to know that the Government of the United States is
not unlimited in its sovereignty. The people in their aggre
gate capacity do not make treaties or law. The people, it is
true, act through representatives, but no act of those repre
sentatives can be performed outside of the Constitution. The
Constitution was made by the people as a check upon their
representatives. The people may amend the instrument ; but,
until changed by them in the mode provided therein, that
Constitution, with all its limitations, operates upon and re
strains every act of every department of the Government.
A nation which possesses the power to govern itself, with
out dependence upon any foreign power or state, is properly
denominated a sovereign state. The form of its government is
wholly immaterial. It may be a pure democracy, a monarchy,
or a republic with limited and defined powers such as our own.
In the United States there is no unlimited sovereignty except
that which resides in the people themselves. The govern-

ment which they framed and put into operation possesses sover
eignty, but only a limited sovereignty. The sovereignty ma^
be absolute as against other nations. It is limited as to its
own citizens. Within the territory belonging to the United
States the power of the federal Government is limited and
controlled by the Constitution. The Government of the United
States is the creature of the Constitution, and therefore it can
exercise no powers except those specially enumerated and
granted, and such as may be absolutely necessary to carry out
the powers specifically conferred. Hence, when we speak of
the sovereignty of 'the United States, we mean a constitutional
sovereignty, a sovereignty limited by the specific grants of
power enumerated in the Constitution.
In speaking of any one of the States in the Union, we
generally refer to it as a sovereign State. The State does not
possess a complete and perfect sovereignty, of course ; but, as
to all matters within the scope of its authority, its sovereignty
is as clear and unchallenged as that of the federal Government
itself. The federal and State governments, though exercised
within the same territorial limits, are separate and distinct
sovereignties. Both are limited. Neither is absolute.
In this connection I quote from Judge Story's work on
the Constitution as follows :
"The sovereignty of a nation or state, considered with
reference to its association, as a body politic, may be ab
solute and uncontrollable in all respects, except the limi
tations, which it chooses to impose upon itself But the
sovereignty of the government, organized within the state,
may be of a very limited nature. It may extend to few,
or to many objects. It may be unlimited as to some ; it
may be restrained as to others. To the extent of the
power given, the government may be sovereign, and its
acts be deemed the sovereign acts of the state."
I come now to a second source of claim for this new
power. This claim admits the limited sovereignty of the fed
eral Government, but insists that the treaty-making power
being without limitation, when it comes tobe exercised, suddenly
6

expands and enlarges itself beyond the usual restraints of the
Constitution. In other words, it is urged that, although the
Constitution is the admitted source ofthe treaty-making power,
yet in the exercise of the power the Constitution itself may be
subverted. This strange power is therefore greater than its
creator. It is an Aaron's rod which swallows up all other
powers and overrides all the guaranties for civil liberty con
tained in the Constitution. A treaty, therefore, with an Indian
chief may overturn the principles of constitutional liberty in
the forty-five great States composing the American Union.
It is admitted that the President and both branches of
Congress have no such power. But the President with two-
tbirds of the Senators, not all the Senators elected, but two-
thirds of those Senators who may happen to be present at the
time, may leap all bounds of constitutional restraint and im
pose upon the people a government alien in principle from that
under which we have lived in happiness for over a century,
and entirely foreign to the intentions of its framers. In other
words, it is insisted that the President and the Senate, in the
exercise ofthe treaty-making power, are not restrained by those
constitutional limitations which operate upon Congress in the '
passage of laws.
lyct us examine this contention for a moment. Justice
Story, in his Commentaries on the Constitution, says :
" But though the power to make treaties is thus general
and unrestricted, it is not to be so construed as to destroy
the fundamental laws ofthe State. A power given by the
Constitution cannot be construed to authorize a de
struction of other powers given in the same instrument.
It must be construed, therefore, in subordination to it ;
and cannot supersede or interfere with any other of its
fundamental provisions. Each is equally obligatory, ai^d
of paramount authority within its scope ; and no one em
braces a right to annihilate any other. A treaty to change
the organization of the government, or annihilate its sov
ereignty, to overturn its republican form, or to deprive it
of its constitutional powers, would be void ; because it
would destroy, what it was designed merely to fulfil, the
, the will ofthe people." 7

Mr. Tucker, in his late work on the same subject, uses the
following language :
" A treaty, therefore, cannot take away essential liber
ties secured by the Constitution to the people. A treaty
cannotbind the United States todo what their Constitution
forbids them to do. A treaty cannot compel any Depart
ment of the Government to do what the Constitution sub
mits to its exclusive and absolute will. On these questions
the true canon of construction is, that the treaty-making
power, in its seeming absoluteness and unconditional ex
tent, is confronted with equally absolute and unconditional
authority vested in the judiciary. Therefore, neither
must be construed as absolute and unconditioned, but
each must be construed and conditioned upon the equally
clear power vested in the others. For example. Congress
has power to lay and collect duties ; the President and
Senate have power to make and contract with a foreign
nation in respect to such duties. Can any other con
struction be given to these two apparently contradictory
powers than that the general power to make treaties must
yield to the specific power of Congress to lay and collect
all duties?"
Judge Cooley, in his " Principles of Constitutional
I/aw," says :
"The President has power, by and with the consent of the
Senate, to make treaties, provided two-thirds of the Senate,
concur. The Constitution imposes no restriction upon
this power, but it is subjected to the implied restriction
that nothing can be done under it which changes the
Constitution of the country, or robs a department of the
Government or any of the States of its constitutional
authority."Again he says :
" The Constitution itself never yields to treaty or en
actment ; it neither changes with time, nor does it in theory
bend to the force of circumstances. It may be amended
according to its own permission ; but while it stands, it is
' a law for rulers and people, equally in war and in peace,
and covers with the shield of its protection all classes of
men, at all times and under all circumstances.' Its prin
ciples cannot, therefore, be set aside in order to meet the

supposed necessities of great crises. ' No doctrine invol
ving more pernicious consequences was ever invented by
the wit of man, than that any of its provisions can be sus
pended during any of the great exigencies of government.' "
I mightadd quotationson this subjectfrom Sargeant, Kent,
Pomeroy, and others. Such quotations would but reassert in
different phraseology this long-established doctrine of con
stitutional interpretation.
" A treaty," says the Supreme Court of the United States,
" is a law of the land as is an act of Congress." Again that .
court has said : " there is nothing in this law [a treaty] which
makes it irrepealable or unchangeable. The Constitution
gives it no superiority over an act of Congress." Hence it
has always been held that treaties, like laws of Congress, may
be attacked in the courts for unconstitutionality, and may be
repealed or modified by act of Congress.
The same provision of the Constitution which declares a
. . treaty tobe the supreme law of the land, gives equal authority
to acts of Congress. If either treaty or law be repugnant to
the Constitution, it is void and must be so declared by the
courts. These have long since become settled interpretations
ofthe organic law ofthe Government. They are the outgrowth
of that provision of the Constitution which extends the judicial
power equally to cases arising under treaties as to cases arising
under the laws of Congress.
If a treaty possesses absolute and unlimited authority,
above the Constitution and all legislative acts, what is left
for judicial inquiry ? The truth is that in the government of
the United States fhe Constitution is the full limit of power
and all laws and all treaties must conform to its provisions.
It is frequently asked with an air of triumph, " Are not
the powers of Congress over the Territories co-extensive with
those of both the federal and State governments ? " Inasmuch
as the Territories are a part of the United States and have no
other law-making bodies than the Congress, the question
may be readily answered in the affirmative. It is the answer
given by the Supreme Court in repeated decisions, and the
9

decisions are sustained by the Constitution and by common
sense. But when it is admitted that the authority of Con
gress in the organization and government of the Territories
combines the powers of both the federal and State legisla
tures, the admission must be coupled with the condition,
already stated, that neither State nor federal authority is un
limited. The government of the United States is created by
the Constitution. The powers of that government are exerted
through the three departments established and clearly defined
in that instrument. Neither one department, nor all three
departments combined, can legally perform any act outside of
the authority therein granted. In other words, the powers
not delegated to the United States by the Constitution cannot
be exercised by Congress when legislating for the nation at
large ; and the powers denied to the States by the Constitu
tion cannot be exercised by Congress when legislating for the
Territories. The limitations of the Constitution are designed to oper
ate upon the governments of both State and nation, as an
ever present barrier against oppression, injustice and wrong.
As a federal legislature. Congress can pass no " bill of at
tainder or ex post facto law." Acting for a Territory Con
gress is equally restrained because the States are expressly
forbidden to pass such laws.
Congress in its national character cannot establish
slavery ; and when acting for the Territories it is equally re
strained by the XIII amendment, declaring that " slavery
shall not exist in the United States or any place subject to
to their jurisdiction."
The 2d section of the 4th article of the Constitution pro
vides that " the citizens of each State shall be entitled to all
privileges and immunities of citizens in the several States."
This stands as a guaranty against inequality in both State
and federal legislation, while the XIV amendment declares
that " no State shall make or enforce any law which shall
abridge the privileges or immunities of citizens of the United

States ; nor shall any State deprive any person of life, lib
erty or property without due process of law ; nor deny to
any person within its jurisdiction the equal protection of the
laws." All these restraints upon State legislation necessarily
operate as limitations upon Congressional legislation in the
Territories. ,
Congress has the power to lay and collect duties on im
ports brought into the United States, but the power does not
exist apart from the condition that such duties " shall be uni
form throughout the United States." The condition is
coupled with the power ; and uniformity is the sine qua non
of its exercise.
The Constitution explicitly forbids the imposition ot
taxes upon exports. " No tax or duty shall be laid on articles
exported from any State ; " and this language embraces Ter
ritories as well as States. The restriction upon State author
ity is equally explicit. " No State shall, without the consent
pf the Congress, lay any imposts or duties on imports or ex
ports, except what may be absolutely necessary for executing
its inspection laws ; and the net produce of all duties and
imposts, laid by any State on imports or exports, shall be for
the use of the Treasury of the United States ; and all such
laws shall be subject to the revision and control of Congress."
Congress is forbidden to " give preference, by any regu
lation of commerce or revenue, to the ports of one State over
those of another ; nor shall vessels bound to, or from one
State to another, be obliged to enter, clear or pay duties in
another." It would seem that under any reasonable construction of
these provisions of the organic law of the Government, the
proposed enactments of Congress, levying import and export
taxes on home products mutually exchanged between the
Territories and the States, must be held nugatory and void.
But we are answered by the imperialistic contention that
the Supreme Court of the United States has already settled
tbe . question involved. A sentence is extracted from the

case of Mvrphy v. Ramsey, 114 U. S., declaring that "the
people of the United States, as sovereign owners of the Ter
ritories, have supreme power over them and their in
habitants.'' " Supreme power," in the vocabulary of this great court,
is not despotism, but only the full limit of legislative author
ity under the restrictions of the federal Constitution. The
words must not be dissociated from the subject-matter under
consideration, nor isolated and tom from their context. They
need no definition beyond a statement of the single question
reviewed in the opinion itself. The sole question involved
was the power of Congress, in legislating for the Territory of
Utah, to limit the right of suffrage to those qualified to vote
under what is known as the Edmunds Act against polygamy.
The question brought in issue referred to political, not to
civil or personal, rights of the inhabitants of Utah. The
power claimed and exercised, in this case, has not been seri
ously disputed since the passage of the ordinance of 1787 for
the government of the Northwest Territory under the Articles
of Confederation down to the present time.
Supreme power in Russia means one thing, in Germany
another thing. In the United States its definition has here
tofore been modified and tempered by the environments of
constitutional law. But the Supreme Court, in this identical
case, gives us its own definition of the language used, as
follows :
" In the exercise of this sovereign dominion, they [the
people] are represented by the government of the United
States, to which all the powers of government over that
subject have been delegated, subject only to such restric
tions as are expressed in the Constitution or are neces
sarily implied in its terms, or in the powers and objects
of the power itself; for it may well be admitted, in re
spect to this as to every power of sovereignty over its
members, that it is not absolute or unlimited."

In this case the court draws the distinction between civil
and political rights, and proceeds as follows :
" The personal and civil rights of the inhabitants of
the Territories are secured to them, as to other citizens,
by the principles of constitutional liberty, which restrain
all the agencies of the government. State and national ;
their political rights are franchises which they hold as
privileges in the legislative discretion of Congress."
The opinion then quotes approvingly those numerous
decisions of the court in which the true principles of the
American Constitution have been so ably vindicated and
upheld. The same broad language is used by the court, in the
case of The Bank v. Yankton County, loi U. S. But when
the case itself is examined, it involves only the authority of
a county in Dakota to issue bonds to a railroad company —
the issue and sale of the bonds having been authorized by an
act of the Territorial legislature of Dakota, amended and
modified by an act of Congress. The Supreme Court here
upholds the act of Congress on the familiar ground that
" Congress may do for the Territories what the people under
the Constitution may do for the States." The court again
uses the word " supreme ; " but again limits the extent of its
meaning by the following language : " except such (powers)
as have been expressly or by implication reserved in the pro
hibitions ofthe Constitution.''
The case of Cross v. Harrison, i6 Howard, is often cited,
as pne directly in point, to refute the position assumed in this
brief. It is ujged that the military authorities in California,
under orders of the President of the United States, levied
and collected impost duties without regard to the rates fixed
.by the tariff laws then in force. Let this be admitted ; but
on examination of the case the power is expressly limited
by the court to the period of military occupation and to
be determined in time by the ratification and exchange
13

of the treaty of peace. On page 190 of the report the
court said :
"No one can doubt that these orders of the President,
and the action of our army and navy commanders in
California in conformity with them, were according to
the law of arms and the right of conquest, and that they
were operative until the ratification and exchange of a
treaty of peace."
These orders of the President, thus given to the military
authorities, are fully set forth in the instructions of Mr.
Buchanan, who was then Secretary of State under President
Polk. After directing the collection of taxes under the de
facto government as a military necessity, the Secretary pro
ceeds : " This de facto government will, of course, exercise no
power inconsistent with the provisions of the Constitu
tion of the United States, which is the supreme law of
the land. For this reason no import duties can be levied
in California on articles, the growth, produce or manu
facture of the United States, as no such duties can be
imposed in any other part of our Union on the produc
tions of California, Nor can new duties be charged in
California upon such foreign productions as have already
paid duties in any of our ports of entry, for the obvious
reason that California is within the territory of the
United States."
Under these instructions the war tariff was immediately,
on receiving news of the ratification of the treaty, made to
conform to the laws of the United States (the tariff act of
1846), and this change received the approval of the court in
these words, to wit :
" That war tariff, however, was abandoned as soon
as the military governor had received from Wash
ington information of the exchange and ratification
of the treaty with Mexico, and duties were afterwards
levied in conformity with such as Congress had im
posed upon foreign merchandise imported into the
other ports of the United States, Upper California hav
ing been ceded by the treaty to the United States.
14

This last was done with the assent of the Executive of
the United States, or without any interference to prevent
it. Indeed, from the letter of the then Secretary of
State, and from that of the Secretary of the
Treasury, we cannot doubt that the action of the
military governor of California was recognized as allow
able and lawful by Mr. Polk and his cabinet. We think
it was a rightful and correct recognition under all the
circumstances ; and when we say rightful, we mean that
it was constitutional, although Congress had not passed
an act to extend the collection of tonnage and import
duties to the ports of California."
It was not my purpose to allude to the phraseology of the
late Spanish treaty. That treaty, like all other treaties and
enactments of Congress, is subject to the limitations of the
Constitution. When territory is acquired, it must be gov
erned by American law and not by that of the former owner.
The flag and the Constitution must go together. The mo
ment when sovereignty attaches, that moment the Constitu
tion spreads over all the land its guaranty of republican
government. If there be a slave he instantly breathes the
breath of freedom. If there be a bondman, his shackles fall.
If there be despotism it suddenly retires in shame as rational
liberty asserts its sway.
If the framers of this late treaty intended to invest Con
gress with unlimited control over the territories acquired, it
is enough to say that the Constitution of this Republic can
not be amended by the Spanish monarchy even with the aid
of the five worthy Commissioners who assisted in the work.
If they mean that the " civil rights " of the people in this
territory " shall be determined by the Congress," regardless
of those constitutional restraints which operate upon it as
upon all Departments of our Government, their intentions
will be disappointed by the wisdom of the Supreme Court
and the patriotism of the people.
This paper has perhaps already reached unnecessary length.
If more be needed to convince even skepticism itself, it may
be found in the debates of that memorable convention of
15

1787 which framed the Constitution in this city. It may be
found in the proceedings of the thirteen State conventions
immediately thereafter assembled to determine the ratification
or rejection of the instrument thus framed ; and it may be
equally found in those celebrated papers of Madison, Jay, and
Hamilton, explaining to the American people the origin,
history, and meaning of each of its provisions. These will
furnish that contemporary interpretation which the courts
have adopted as the best expounders of laws and constitu
tions. If still more be needed for safe construction, it may
be found in the undoubting acquiescence and the unbroken
practice of the government, in all its departments, for one
hundred and twelve years. These are the faithful prophets
of interpretation, and if men refuse to hear them, "neither
will they be persuaded though one rose from the dead," and
proclaimed the truth.
If the legislation now proposed for Puerto Rico should be
applied for twenty-five years to the richest State in the Amer
ican Union, its wealth will have departed and its inhabitants
will have become paupers.
It has been said that the trusts and protected interests of
the country have demanded this sacrifice of republican jus
tice to the now dominant spirit of avarice and greed. If such
be the case, no accusation of the anti-imperialist is without
its vindication. If this legislation is to be enforced, the
territories of the United States will hereafter be known as
colonies. They will be governed, not by those familiar and
sympathetic with their interests, but by aliens, greedy of
their earnings and heedless of their sufferings. As the feast
grows small the vultures will fight over the prey. Rome did
no more than this. And if we follow her example, we must
expect to follow her fate.

For additional copies of this Tract, apply with postage,,
to W. f. Mize, Secretary, 5/7 First National Bank Building,
Chicago.

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