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Steam Navigation Co. v. Stranahan (1909), 214 U. S. 320, to persons convicted of crime, United States v. Williams (1913), 203 Fed. 155, to paupers or persons liable to become a public charge, Japanese Immigrant Cases (1903), 189 U. S. 86, to persons assisted by others to come to the United States, United States v. Rodgers (1911), 191 Fed. 970, and to prostitutes, United States v. Bitty (1908), 208 U. S. 393, Low Wah Suey v. Backus (1912), 225 U. S. 460, Lapina v. Williams (1914), 232 U. S. 78. The right to exclude aliens involves the right to control the privilege of transit through the United States, Fok Yung Yo v. United States (1902), 185 U. S. 296.

The most important measures adopted for the exclusion of aliens are those directed to the exclusion of Chinese "laborers." This word has been held to include a lodging-house keeper, In re Tenny (1898), 86 Fed. 303, a prostitute, Lee Ah Yin v. United States (1902), 116 Fed. 614, a gambler, United States v. Ah Fawn (1893), 57 Fed. 591, a merchant who worked in a laundry, United States v. Yong Yew (1897), 83 Fed. 832, and a tenant of a farm, Lew Quen Wo v. United States (1911), 184 Fed. 685.

The right to exclude aliens involves the right to expel, Tiaco v. Forbes (1913), 228 U. S. 549.

While the abstract right to exclude or expel aliens is admitted, the duties attendant upon membership in the family of nations must not be overlooked. The political and commercial relations of nations are so close and the privilege of entrance and residence has been so freely accorded that an arbitrary exclusion or expulsion may give rise to a diplomatic claim. Bonfils, Manuel de Droit International Public, §§ 441, 442.

For a state to exclude all foreigners would be to withdraw from the brotherhood of civilized peoples; to exclude any without reasonable or at least plausible cause, is regarded as so vexatious and oppressive that a government is thought to have the right of interfering in favor of its subjects in cases where sufficient cause does not, in its judgment, exist.

Hall, International Law, 223.

The expulsion of aliens even more than their exclusion imposes upon the state the duty of showing circumstances which justify its act. The prevailing practice was well stated by Gresham, Secretary of State, in these words:

The just rule would seem to be that no nation can single out for expulsion from its territory any individual citizen of a friendly nation without special and sufficient grounds therefor. And even when such grounds exist the exclusion should be effected with as little injury to the individual and his property interest as may be compatible with the safety and interests of the country which expels him.

Moore, Digest of International Law, IV, 84. The whole subject is admirably treated in Bouvé, A Treatise on the Laws Governing the Exclusion and Expulsion of Aliens in the United States.

In the case of Kansas v. Colorado (1907), 206 U. S. 46, the doctrine of inherent powers was repudiated in sweeping terms. But if the

language of the Court be confined to the case which was actually before it for decision, it can be reconciled with other cases in which the doctrine of inherent powers has been recognized. The States undoubtedly have jurisdiction over the reclamation of arid lands within their borders. Such reclamation may however be impracticable without the assistance of neighboring States. Furthermore the United States, as the owner of vast areas of arid lands which it had undertaken to reclaim, had an interest superior to that of the States. Counsel invited the Court to hold that such obstacles to State action necessarily vested Congress with jurisdiction. To this argument the Court responded by reference to the Tenth Amendment and by deny. ing, contrary to the decision in several other cases, that there could be any such thing as inherent powers. The whole subject is well dis cussed in Willoughby, The Constitutional Law of the United States, I, 49 seq., and in Tiedeman, The Unwritten Constitution of the United States.



182 United States, 244.

Error to the Circuit Court of the United States for the Southern District of New York.

This was an action begun in the Circuit Court by Downes, doing business under the firm name of S. B. Downes & Co., against the collector of the port of New York, to recover back duties to the amount of $659.35 exacted and paid under protest upon certain oranges consigned to the plaintiff at New York, and brought thither from the port of San Juan in the Island of Porto Rico during the month of November, 1900, after the passage of the act temporarily providing a civil government and revenues for the Island of Porto Rico, known as the Foraker act.

The District Attorney demurred to the complaint for the want of jurisdiction in the court, and for insufficiency of its aver ments. The demurrer was sustained, and the complaint dismissed. Whereupon plaintiff sued out this writ of error.

MR. JUSTICE BROWN, after making the above statement, announced the conclusion and judgment of the court.

This case involves the question whether merchandise brought into the port of New York from Porto Rico since the passage of

the Foraker act, is exempt from duty, notwithstanding the third section of that act, which requires the payment of "fifteen per centum of the duties which are required to be levied, collected and paid upon like articles of merchandise imported from foreign countries."

In the case of De Lima v. Bidwell, just decided, we held that upon the ratification of the treaty of peace with Spain, Porto Rico ceased to be a foreign country, and became a territory of the United States, and that duties were no longer collectible upon merchandise brought from that island. We are now asked to hold that it became a part of the United States within that provision of the Constitution which declares that "all duties, imposts and excises shall be uniform throughout the United States." (Art. I, § 8.) If Porto Rico be a part of the United States, the Foraker act imposing duties upon its products is unconstitutional, not only by reason of a violation of the uniformity clause, but because by section 9 "vessels bound to or from one State" cannot "be obliged to enter, clear or pay duties. in another."

The case also involves the broader question whether the revenue clauses of the Constitution extend of their own force to our newly acquired territories. The Constitution itself does not answer the question. Its solution must be found in the nature of the government created by that instrument, in the opinion of its contemporaries, in the practical construction put upon it by Congress and in the decisions of this court.

It is sufficient to observe in relation to these three fundamental instruments [The Articles of Confederation, the Ordinance of 1787, and the Constitution] that it can nowhere be inferred that the territories were considered a part of the United States. The Constitution was created by the people of the United States, as a union of States, to be governed solely by representatives of the States; and even the provision relied upon here, that all duties, imposts and excises shall be uniform "throughout the United States," is explained by subsequent provisions of the Constitution, that "no tax or duty shall be laid on articles exported from any State," and "no preference shall be given by any regulation of commerce or revenue to the ports of one State over those of another; nor shall vessels bound to or from one State be obliged to enter, clear or pay duties in another." In short, the Constitution deals with States, their people and their representatives.

The Thirteenth Amendment to the Constitution, prohibiting slavery and involuntary servitude "within the United States, or in any place subject to their jurisdiction," is also significant as showing that there may be places within the jurisdiction of the United States that are no part of the Union.

Upon the other hand, the Fourteenth Amendment, upon the subject of citizenship, declares only that "all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States, and of the State wherein they reside." Here there is a limitation to persons born or naturalized in the United States which is not extended to persons born in any place "subject to their jurisdiction."

The question of the legal relations between the States and the newly acquired territories first became the subject of public discussion in connection with the purchase of Louisiana in 1803.

It is well known that Mr. Jefferson entertained grave doubts as to his power to make the purchase, or, rather, as to his right to annex the territory and make it part of the United States, and had instructed Mr. Livingston to make no agreement to that effect in the treaty, as he believed it could not be legally done. Owing to a new war between England and France being upon the point of breaking out, there was need for haste in the negotiations, and Mr. Livingston took the responsibility of disobeying his instructions, and, probably owing to the insistence of Bonaparte, consented to the third article of the treaty, which provided that "the inhabitants of the ceded territory shall be incorporated in the Union of the United States, and admitted as soon as possible, according to the principles of the Federal Constitution, to the enjoyment of all the rights, advantages and immunities of citizens of the United States; and in the mean time they shall be maintained and protected in the free enjoyment of their liberty, property and the religion which they profess." This evidently committed the government to the ultimate, but not to the immediate, admission of Louisiana as a State, and postponed its incorporation into the Union to the pleasure of Congress.

Two bills were passed, one October 31, 1803, 2 Stat. 245, authorizing the President to take possession of the territory, and to continue the existing government, and the other Novemher 10, 1803, 2 Stat. 245, making provision for the payment of the purchase price. These acts continued in force until March 26, 1804, when a new act was passed providing for a temporary

government, 2 Stat. 283, c. 38, and vesting all legislative powers in a governor and legislative council, to be appointed by the President. These statutes may be taken as expressing the view of Congress, first, that territory may be lawfully acquired by treaty, with a provision for its ultimate incorporation into the Union; and, second, that a discrimination in favor of certain foreign vessels trading with the ports of a newly acquired territory is no violation of that clause of the Constitution, Art. I, § 9, that declares that no preference shall be given to the ports of one State over those of another. It is evident that the constitutionality of this discrimination can only be supported upon the theory that ports of territories are not ports of States within the meaning of the Constitution.

The same construction was adhered to in the treaty with Spain for the purchase of Florida, 8 Stat. 252, the sixth article of which provided that the inhabitants should "be incorporated into the Union of the United States, as soon as may be consistent with the principles of the Federal Constitution"; and the fifteenth article of which agreed that Spanish vessels coming directly from Spanish ports and laden with productions of Spanish growth or manufacture, should be admitted, for the term of twelve years, to the ports of Pensacola and St. Augustine, "without paying other or higher duties on their cargoes, or of tonnage, than will be paid by the vessels of the United States,' and that "during the said term no other nation shall enjoy the same privileges within the ceded territories."

So, too, in the act annexing the Republic of Hawaii, there was a provision, continuing in effect the customs relations of the Hawaiian Islands with the United States and other countries, the effect of which was to compel the collection in those islands of a duty upon certain articles, whether coming from the United States or other countries, much greater than the duty provided by the general tariff laws then in force. This was a discrimination against the Hawaiian ports wholly inconsistent with the revenue clauses of the Constitution, if such clauses were there operative.

The very treaty with Spain under discussion in this case contains similar discriminative provisions, which are apparently irreconcilable with the Constitution, if that instrument be held to extend to these islands immediately upon their cession to the United States.

Notwithstanding these provisions for the incorporation of ter

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