i9i^.| OF THE UNITED STATES. 295 



application ; and that, once Porto Rico became organized territory 

 of the United States, the provisions of the Constitution including 

 the restriction imposing uniformity of taxation, applied, and the 

 Foraker Act. attempted to be enforced in Downes vs. Bidwell, was 

 unconstitutional and void. To this Justices McKenna, Shiras, 

 White, and Gray rejoined that " Porto Rico occupied a relation to 

 the United States between that of being a foreign country absolutely 

 and of being domestic territory absolutely " ; that Congress was only 

 empowered to act in any case subject to the applicable limitations 

 of the Constitution ; that Porto Rico had not been incorporated into 

 the United States so as to bring it within the provisions of Article 

 I.. Section 9, of the Constitution; that therefore Porto Rico could 

 not become domestic territory without the action of Congress : and 

 consequently that the existing tariff act applied in DeLima vs. Bid- 

 well and the Foraker Act in Downes I's. Bidwell. Mr. Justice 

 Brown was of the opinion, however, that a country could not be 

 domestic for one purpose and foreign for another ; and that Porto 

 Rico was wholly domestic territory. He thought, however, that 

 Article L, Section 9. had no application to the islands which could 

 not be regarded as part of the United States within the meaning 

 of that clause, but should rather be spoken of as " a territory appur- 

 tenant and belonging to the United States." His vote therefore de- 

 termined the decisions in the two cases alternately in favor of and 

 against the two groups consisting each of four justices. It is sub- 

 mitted that the position of Mr. Justice Brown is in substance with 

 the four who prevailed in Downes vs. Bidwell. In the first place, 

 the effect of the decisions is that Congress has the power henceforth 

 to legislate for territory acquired by treaty, without being subject 

 to customary restrictions on such legislation provided in the con- 

 stitution. In the second place, while the language of Mr. Justice 

 Brown to the effect that territory acquired by treaty forthwith 

 becomes domestic and cannot for any purposes be regarded as 

 foreign, may seem to be flatly opposed to the position of ]\Ir. Justice 

 AIcKenna and Mr. Justice White, as set forth in their respective 

 opinions; yet when he grants (as in Downes z's. Bidwell) that 

 though " domestic territory," the Constitution is not applicable as 



