CHAPTER IV

IMPERIAL RESPONSIBILITIES

THREE years elapsed after the war with Spain, and America still found herself in the dilemma regarding the status of the annexed peoples. When we come to consider the antiquated constitution and the modern Supreme Court, we will see how inevitable it was that the latter body should come to the rescue and relieve the country from its embarrassment.

The constitution was made for the United States, not the United States for the constitution. It had been pointed out that to hang the entire administration of colonial possessions upon the single grant of power "to make all needful rules and regulations respecting the territory" of the United States, is to suspend an empire by a very slender thread.

In a letter addressed to Gallatin on the proposed purchase of Louisiana, Jefferson wrote

"There is no constitutional difficulty as to the acquisition of territory, and whether, when acquired, it may be taken into the Union by the Constitution as it now stands will become a question of expediency."

Up to 1901 the great check on America's expansion beyond her geographical boundaries, or her power of conquering feebler States, was the general belief that

such territory, whenever annexed, was a potential State, and must ultimately be included within the Union.

It was thought that the constitution offered no alternative, and this being so, the American people regarded the admission of millions of coloured voters, or Catholic voters, or voters disaffected towards democracy, with alarm. How to get out of the difficulty?

They did not know the elastic nature of their constitution, its adaptability in the hands of clever men to any situation which may conceivably arise.

Two recent decisions of the Supreme Court came to alter completely the fundamental relations, of President and Congress, to the people of the American transmarine dependencies, so well to the inhabitants of the territories.

The first of these was that in the case of De Lima v. Bidwell (collector of the port of New York), in which it was ruled that instantly upon the cession of Porto Rico by Spain to the United States that island became part of America, and that duties could not be lawfully exacted upon merchandise coming thence after the cession and prior to special legislation on the part of Congress.

In the second case, Downes v. Bidwell, it was held that Congress could constitutionally impose duties not uniform but discriminative, throughout the United States, upon merchandise coming from Porto Rico after such legislation, because the latter was "not part of the United States within the meaning of the revenue clauses of the constitution."1

1 I.e. "that all duties, imposts and excises, shall be uniform throughout the United States."

However paradoxical these two decisions may appear they practically determine the powers of Congress over the people of all the American dependencies, until they are overruled by a differently organized court. Thus, it is declared that ceded territories become a part of the United States, but that their inhabitants are not entitled to the rights of American citizenship.'

Judging by the first decision, the "uniformity" clause in the constitution applied to the territory, and this was probably the opinion of the majority of the members of the Supreme Court.

The second case dealt with a matter happening after the passage of the act creating a territorial government in Porto Rico. A legislative body, consisting of two branches, was provided for, and the appointment of a Governor and Attorney-General authorized, Courts were established, and leave given to litigants to appeal to the American Supreme Court. At the same time a duty was levied upon Porto Rican products brought into America, and the question now arose as to the validity of such a duty. If Porto Rico were part and parcel of America, the imposition of a duty was unconstitutional. One of the members, Mr. Justice Brown, settled the whole vexed question in his own mind, and, without the concurrence of any of his colleagues, delivered himself of an argument which rendered him at once famous. He maintained that "the constitution of the United States was formed by the thirteen States, and

1 The first decision assumed this form: "We are therefore of opinion that at the time these duties were levied, Porto Rico was not a foreign country within the meaning of the tariff laws, but a territory of the United States, that the duties were illegally exacted, and that the plaintiffs are entitled to recover them back."

that its scope and authority were limited to the thirteen States, and to such States as might from time to time be added thereto." Furthermore, said he, the constitution did not, by its own force, extend to the possessions of the United States, whether created into territories with a regular form of government, or whether they were outlying unorganized possessions. There is no doubt that Mr. Justice Brown was historically correct in this opinion, because this was really the idea pervading the minds of the men who made the constitution. But American State policy and the spirit of Supreme Court rulings for three parts of a century have diverged from such a theory, until it came to be axiomatic that the territories, when organized, are ipso facto, brought within the scope of the constitution. In other words, that a territorial organization constitutes a pledge to the inhabitants that a territory will normally develop into a State of the Union.

Now, although a majority of the Supreme Court bench voted with Mr. Justice Brown against the legality of the customs exactions, they by no means agreed with his proposition that Porto Rico was a mere possession and not a potential State. They merely held that the constitution did not apply to the island, and consequently that the assessment of duties was illegal, in as much as under the constitution the uniformity clause was applicable to territories created by Act of Congress and duly organized. Nevertheless, their colleague's opinion is, in reality, sounder, and, in the long run, a safer doctrine. For while he voted for the appellants in the De Lima case, he only did so because Congress had not yet legislated for Porto Rico. Had Congress done

so, he was prepared to say that the act of imposing a duty of fifteen per cent. of the duties imposed under the Dingley tariff was perfectly legal. Porto Rico was not a foreign country, nor was it an integral part of America; but Congress could legislate, at its own discretion, for the tariff system of any dependency.1

I am of opinion that Mr. Justice Brown's views have obtained very wide acceptance, and that he has made converts of his own colleagues. Yet there are some who believe that if a case should again arise, Porto Rico will be declared a territory, subject to the constitution, and therefore a potential State. And if Porto Rico, so also the Philippine Islands, so that it would follow that every dependency which America has acquired from Spain will be organized as a territorial government, and the constitution made applicable to them.

England's doubtful example in Canada will be no precedent in the case of America's treatment of her new possessions in the Philippines. Her chief object is to Americanize the former Spanish possessions as soon as possible, and to this end American political and judicial systems, American material civilization, and American education is to be introduced. One of the first steps is to make the learning of English obligatory in the schools, and to abolish as speedily as possible all Spanish. In official life and in the law courts, however, Spanish is to be permitted for five years, on account of past commission having had a free hand in reorganizing the government of the island.

1 "Assuming always," remarks ex-Congressman Boutell, "what is not by every one admitted, that Congress has power to legislate beyond the scope of the constitution, from which its own authority to legislate is derived.”