As a result of the Spanish-American War the United States came into possession of territories over which, because of their location, their economic and industrial status, and especially the character of their populations, it was deemed expedient to give to the Executive or to Congress the freest possible discretion with reference not only to the manner in which they should be governed, but to the civil rights that should be granted their inhabitants. The question whether in dealing with these new insular possessions, Congress should be held subject to all those constitutional limitations which apply when dealing with civil rights in the States or in the then existing Territories, thus became a most important one.

The form in which this question arose for judicial determina tion was as to the constitutionality of that clause of the Foraker Act establishing civil "congressional" government in Porto Rico, which provided a scale of customs duties to be paid upon goods brought into the ports of the United States from the island. This necessarily involved an answer to the question whether the provision of the Constitution that "all duties, imposts and excises shall be uniform throughout the United States" applied ex proprio vigore to Porto Rico, or whether, having never been formally "incorporated" by Congress into the United States either expressly or by implication, the island was not a part of the "United States" within the meaning of the term as used in the constitutional clause just quoted.

In Downes v. Bidwell1 five of the nine justices of the Supreme Court concurred in holding that, though by the treaty of cession the island of Porto Rico came under the sovereignty of the United States, and when viewed from the standpoint of all other nations became a part of the United States, it did not, when looked at l 182 U. S. 244; 21 Sup. Ct. Rep. 770; 45 L. ed. 1088.

from the viewpoint of its own public law, become a part of the "United States" as that term is used in the Constitution.

Four of these five justices were able to reach this conclusion: First, by making a sharp distinction between "incorporated" and "unincorporated" Territories, Second, by holding that the treaty-making power though able to annex Territories to the United States, that is, bring them under its sovereignty internationally speaking, is not competent to incorporate such areas in the United States, but that for this purpose the express or implied consent of Congress is necessary; and Third, that Congress in legislating for unincorporated Territories is not subject to many of the limitations which apply when it is legislating for the States and incorporated Territories.

It will be observed that so far as the general limitations upon the legislative powers of Congress are concerned, these four justices place the States and the incorporated Territories in the same class. Only the unincorporated Territories are by them excluded from the protection of such limitations as, for example, that federal tax laws shall be uniform throughout the United States. The fifth justice, Brown, who concurred with these four, does not, as we shall see, make any distinction between incorporated and unincorporated Territories, but excludes them all from the term "United States," and from the protection of all but the most fundamental of the constitutional limitations upon the power of Congress. The constitutional rights which these limitations create, he asserts, do not belong to the citizens of any Territories until by act of Congress they have been extended to them. Thus, while the four justices divide the domains of the United States into the three classes of States, Incorporated Territories, and Unincorporated Territories; Justice Brown recognizes only two categories, States and Territories.

The reasoning of the four justices was as follows:2 At the beginning very proper care is taken to point out that the question is not as to whether the Constitution is to control in the premises, but as to which of its provisions are applicable. "Every function of the government being . . . derived from the Constitution." says the opinion, "it follows that that instrument is everywhere and at all times potential in so far as its provisions are applicable. Hence it is that whenever a power is given by the Constitution, and there is a limitation imposed on the authority, such restriction operates upon and confines every action on the subject within its constitutional limits. As Congress in governing the Territories is subject to the Constitution, it results that all the limitations of the Constitution which are applicable to Congress in exercising this authority necessarily limit its power on this subject. It follows, also, that every-provision of the Constitution which is applicable to the Territories is also controlling therein. . . . In the case of the Territories, as in ry other instance, when a provision of the Constitution is invoked, the question which arises is, not whether the Constitution is operative, for that is self-evident, but whether the provision relied on is applicable. . . . And the determination of what particular provision of the Constitution is applicable, generally speaking, in all . involves an inquiry into the situation of the territory and its relations to-the United States."

2 These were the same justices who dissented from the judgment of the court, in De Lima v. Bidwell that by the treaty of annexation Porto Rico at once ceased to be "foreign territory " within the meaning of the federal tariff laws.

Some of the limitations created by the Constitution, the opinion recognizes, are of such "general and fundamental character or so absolutely laid down" as to restrain Congress in whatever capacity it may be acting - whether as a general legislature for all the regions and peoples subject to United States sovereignty, or only as a local legislature for the Territories. "Albeit," the opinion declares," as a general rule, the status of a particular Territory has to be taken in view when the applicability of any provision of the Constitution is questioned, it does not follow, when the Constitution has absolutely withheld from the government all power on a given subject, that such an inquiry is necessary. Undoubtedly there are general prohibitions in the Conation in favor of the liberty and property of the citizen, which are not mere regulations as to form and manner in which a conceded power may be exercised, but which are absolute denials of all authority under any circumstances or conditions to do particular acts. In the nature of things, limitations of this character cannot under any circumstances be transcended, because of the complete absence of power." The opinion does not attempt, however, to enumerate any of those absolute prohibitions of power, though it does later describe them as those made "in favor of human liberty."