294 BURR— THE TREATY-MAKING POWER [April 20, 



territory or otherwise. Xone of the six judges who directly ex- 

 pressed themselves even questioned the manner of the exercise of 

 -the treaty-making power in the cases at bar. There was no possible 

 occasion for such criticism. By the treaty the determination of the 

 civil rights and political status of the inhabitants of the islands was 

 left to Congress, and Congress by a series of acts appropriated 

 money, ratified the treaty, and proceeded to provide for the govern- 

 ment of the acquired territory. By reason, however, of the com- 

 ments of the members of the Court, these cases will repay careful 

 and detailed examination. One must beware of seizing upon the 

 remarks of any one of the judges without the most careful reference 

 to its connection with his course of argument and to the issue pre- 

 sented. This is always a wise caution ; it is here a vital one ; for. 

 in these cases, four judges agreed in the main, one with the other; 

 four others, while agreeing one with the other, absolutely repudiated 

 the reasonings and conclusions of the first four ; while the ninth 

 judge, by alternately voting with each group, determined the decision 

 in both cases. The facts were simple and are as follows : 



On April nth, 1899. the treaty ceding Porto Rico to the United 

 States was ratified and proclaimed. On April 12th, 1900, the Foraker 

 Act was passed, creating civil government for the Island, and ]:)ro- 

 viding for the collection of tariff duties on imports therefrom into 

 the United States. In DeLima z's. Bidwell the question was as to 

 the application of the existing United States tariff to imports be- 

 tween the date of the ratification of the treaty and the time wdien 

 the Foraker Act took effect. In Downes z'S. Bidwell the question 

 was as to the constitutionality of the Foraker x\ct, which admittedly 

 did not comply with the provision of the Constitution that "all duties, 

 imports, and excises shall be uniform throughout the United States." 

 The Chief Justice and Justices Harlan, Brewer, and Peckham were 

 of the opinion that when Porto Rico was ceded to the United States, 

 and, by the terms of the treaty and the action of Congress, a civil 

 government was therein created, the provisions of the Constitution 

 at once applied ; that the island could not be termed foreign territory 

 after the ratification of the treaty ; that consequently the existing 

 tariff law attempted to be enforced in DeLima vs. Bidwell had no 



