Foreign and yet Not Foreign.
- (From the Springfield Republican.)*
Against Judge Lochren’s opinion as to the constitutional powers of Congress over the new territory of the United States, comes that of Judge William K. Townsend, sitting in the United States district court for Southern New York. The latter holds views quite the reverse of those expressed by the United States circuit judge at St. Paul in the habeas corpus case of the Porto Rican, Ortiz. The case before Judge Townsend related to on an importation of tobacco from Porto Rico after the treaty of Paris had been ratified and an exchange395of ratifications had taken place. The importers, John Goetz & Co., appealed the matter to the board of general appraisers, which decided against the importers, who thereupon took the case to the United States court, contending that Porto Rico had become a part of the United States and within the tariff laws of the nation. Judge Townsend decides that Porto Rico is not a part of the United States to this extent and will not become such a part until Congress has expressly defined the status of the island to this effect. left with Congress the determination of “the civil rights and political status of the territories hereby ceded,” and it was within the constitutional authority of the treaty-making power, says Judge Townsend, to give Congress unlimited power in the matter. Congress meantime has refused to extend the Constitution and the laws to the island, and accordingly it remains outside of the Constitution. It is foreign country so far as the Constitution is concerned, but United States territory as against other nations. Judge Townsend brings out no new authority or precedent in support of this side of the question, beyond the STATEMENT OF CHIEF JUSTICE MARSHALL
(in American insurance company against Carter) respecting “the usage of the world” in the case of ceded territory: “It becomes a part of the nation to which it is annexed, either on the terms stipulated in the treaty of cession or on such as its new master shall impose.” The gist of Judge Townsend’s opinion is contained in the following: “To deny this power, to govern territory at arm’s length would be to thwart that intention to make THE UNITED STATES AN UNFETTERED SOVEREIGN in foreign affairs. For if we wage war successfully we must some time become, as many think we are now, charged with territory which it would be the greatest folly to incorporate at once into our Union, making our laws its laws and its citizens our citizens, our taxes its taxes; and which, on the other hand, international considerations and the sense of our responsibility to its inhabitants may forbid us to abandon. The construction of the Constitution which would limit our sovereign power would force us into a dilemma between violating our duty to other nations and to the people under our care on the one hand, and violating our duty to ourselves on the other. That construction would in such case imperil the honorable existence of our republic.”
And so the president and the Senate, as the treaty-making power, may annex any territory they are able to; and may then delegate to Congress the power to act beyond the Constitution, and exactly as it pleases, in relation to the new territory. Now the duly constituted government of the United States may indeed be AN UNFETTERED SOVEREIGN IN FOREIGN AFFAIRS; but when foreign territory has once been annexed to the United States we come to deal not with a foreign, but with a domestic affair—with territory of the United States and not of some other sovereign power. And here is the fatal weakness in Judge Townsend’s argument. When, therefore, he asserts the power of the president and Senate to delegate unlimited power to Congress in relation to territory of the United States, he is obliged to maintain that the government at Washington is a government of unrestricted powers rather than one exercising a certain measure of delegated authority from a power paramount to that of president and Congress. Such views as these place the government above the people who created it, and who, in a written Constitution, imposed bounds upon the scope of its authority. They seem to us to be