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Justice Brown also wrote the opinion of the court, in which the majority concurred holding that duties paid in Porto Rico on goods brought from New York after the ratification of the treaty and prior to the Foraker Act were illegally exacted. In Downesu. Bidwell, 182 U. S. 244, which involved the right to recover for duties paid on goods brought from Porto Rico to New York after the passage of the Foraker Act, which imposed a duty equal to 5 per cent of the Dingley tariff, Justice Brown announced thejudgment and conclusion of the court to the effect that Congress has the power to levy these duties. There was no opinion of the court. It was in this case that "Mr. Dooley " made his famous remark that "Mr. Justice Brown delivered the opinion of the court from which only eight of the justices dissented." The case having been assigned to Justice Brown he announced the conclusion, basing his own opinion on the right of Congress to impose a tariff as Porto Rico "is not a part of the United States within that provision of the Consti tution which declares that all duties, im posts, and excises shall be uniform through out the United States." Mr. Justice White delivered a concurring opinion in that case in which Justice Shiras and McKenna con curred in which he advanced the theory of "incorporation" of territory and that until territory acquired by the treaty making power had actually, by some action of Con gress, Become incorporated as a part of the United States it remained under the control of Congress. Justice Gray concurred in a separate opinion, though he stated that in substance he agreed with Justice White, while the chief justice dissented from the conclusion of the court in a separate opinion in which Justices Harlan, Brewer, and Peckham concurred. Justice White's theory which at that time was only supported by three members of the court, as now constituted, includ ing himself, was subsequently practically adopted by a large majority of the court in
Rasmussen v. United States, 197 U. S. 516. In this case a man indicted for keeping a disreputable house in violation of the Alaska Code was tried by a jury of six men and convicted. He came by writ of error to the Supreme Court of the United States on the ground that as Alaska was a part of the United States he was entitled to a jury trial as understood by the common law requiring the unanimous verdict of twelve jurors. The Government contended that Alaska was territory under Congressional control and Congress could provide for a jury irrespec tive of common law rules applicable to those territories over which the Constitution of the United States had been extended. The judgment was reversed; Justice White de livered the opinion, basing it upon the theory demonstrated by him in Downes v. Bidwell, and which, he maintained, had been adopted in Dorr v. United States, 195 U. S. 138. None of the justices dissented from the judgment, but Justice Harlan con curred in a separate opinion in which he disclaimed the "incorporation" theory, and Justice Brown also separately concurred in an opinion in which he regretted that the disputed doctrine of "incorporation " should have been made the mainstay of the opinion of the court when it might have been so easily disposed of on grounds which would have prevented any utterances of disap proval. One of the last opinions written by Mr. Justice Brown, and within a few weeks of his retirement was in the only case in which the Supreme Court of the United States has had occasion to decide a divorce case upon the merits, De La Rama v. De La Rama, 201 U. S. 303. Under the act creating the courts of the Philippine Islands an appeal lies from the Supreme Court of those Islands to the Supreme Court of the United States from final judgments where the amount in volved is over $25,000. Those divorce cases which have come from the state courts have involved questions of law only as in those cases the Supreme Court is bound by
